Judge calls for review of CPUC emails Ruling -- Utilities commission won't get last word on withholding San Onofre emails

Union Tribune (2016-01-25) Jeff Mc Donald

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Judge calls for review of CPUC emails

Ruling: Utilities commission won't get last word on withholding San Onofre emails

By Jeff McDonald | 12:38 p.m. Jan. 25, 2016 | Updated, 5:05 p.m.

A San Francisco Superior Court judge on Monday rejected the California Public Utilities Commission’s request to dismiss a lawsuit aimed at forcing regulators to release dozens of emails to and from Gov. Jerry Brown’s office regarding the San Onofre nuclear plant failure.

“Withholding records of allegedly ex parte secret deals resulting in shifting $3.3 billion of utility losses to ratepayers cannot possibly be a regulatory function of the PUC,” Judge Ernest Goldsmith said. “It is not realistic that the Legislature intended that (Public Utilities Code) Sec. 1759 should be invoked to insulate PUC officials accused of corruption from public scrutiny.”

San Diego consumer attorney Michael Aguirre sued the commission in March after it declined to turn over documents he sought under the California Public Records Act.

Goldsmith stopped short of ordering the disputed records released. Instead, unless commission lawyers seek and receive an order from a higher court, the documents will be reviewed in private by another judge, who will then decide whether they can be withheld from the public.

“Absent some kind of stay imposed by some other court, I see this as proceeding ahead with the review,” said attorney Maria Severson, who filed the case on behalf of Aguirre, her law partner. “These records will have to go to a judge now.”

Spokeswoman Terrie Prosper said the commission intends to challenge the ruling, which came at the end of a 50-minute hearing in San Francisco Superior Court, just a few blocks from the commission’s Van Ness Avenue headquarters.

“The law is very clear that the Superior Court lacks jurisdiction,” she wrote in an email. “The CPUC has a legal and ethical obligation to ensure that only those courts with jurisdiction hear cases involving the CPUC.”

The PUC has special judicial authority and a staff of judges to hear appeals that arise out of its official proceedings on matters affecting privately owned power, telecommunications, water and transit companies.

What’s in dispute is whether the agency’s actions on an unregulated issue — such as public records law — can be appealed to Superior Court or must go to the higher level of the appellate court.

“If the lawsuit is filed in the correct court, we are fully prepared to provide the necessary factual and legal basis for the CPUC’s application of the Public Records Act,” Propser wrote. And “while we do not typically comment on pending litigation, I want to be clear that the emails in question did not relate to the San Onofre settlement, nor were they sent to or from the Governor personally.”

Aguirre sought records related to the January 2012 closure of the San Onofre nuclear power plant on the north San Diego County coast, a failure that has resulted in a wide range of commission business, not just the $4.7 billion settlement of premature closure costs approved by the commission in November 2014. The agreement assigned 70 percent of the costs to customers rather than to utility shareholders.

Southern California Edison, majority owner of the failed power plant, disclosed last year that the framework for the deal was sketched out at a 2013 meeting in Warsaw, Poland, between one of its vice presidents and former commission President Michael Peevey.

Edison disclosed the meeting nearly two years after the fact, and days after The San Diego Union-Tribune reported that notes from the meeting had been seized by state agents executing a search warrant at Peevey’s Los Angeles area home. The commission is under investigation for its friendly dealings with the utility executives it’s supposed to oversee.

Commission lawyers released hundreds of records in response to Aguirre’s document request. They withheld 65 emails to and from the Governor’s Office under the executive-privilege and deliberative-process exemptions. They also withheld scores of San Onofre-related emails sent or received by commission President Michael Picker.

In court papers and at three different hearings held in the case, commission lawyers told Goldsmith that he had no jurisdiction over the panel because it is a quasi-judicial agency and the Utilities Code says any appeals of commission decisions must be filed in an appellate court.

“This is a case dealing with our official duty to respond to the Public Records Act,” commission lawyer Jonathan Koltz told Goldsmith on Monday. “A plaintiff that a has a problem with that response has the right to go to the court of appeal.”

Severson and Aguirre argued that responding to California Public Records Act requests is a non-regulatory administrative duty, subject first to the Government Code and state constitution — not the Utilities Code.

The judge concurred. “This is not a garden variety matter,” he said. “A core value in a democracy is the right of citizens to know the actions taken by public officials.”

The commission has retained at least two private criminal-defense law firms to respond to public records requests and search warrants from the state Attorney General’s Office. It is spending as much as $5 million of ratepayer funds, much of it to review records for potential privileges that might prevent them from being released.

Investigators from the Attorney General’s office have sought and received at least six separate search warrants as part of their ongoing criminal probe. No charges have been filed.

Aguirre praised the judge, saying he was very careful and very narrow in his ruling.

“The door to the backroom where all the secret deals are made is slightly ajar,” Aguirre said in a telephone interview following the decision. “Our goal is to push it all the way open.”

Severson noted the commission is not obligated to exercise the exemptions cited in court filings.

“It’s important to remember that even if there are exemptions, they can always be waived,” she said. “What is in these documents that is causing them to hunker down?”

Unless the commission appeals the Monday order. the case will be assigned to a San Francisco Superior Court trial judge. That judge would review the emails to and from the Governor’s Office and Picker to determine whether they should be released under the open-records law.

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