Energy Transfer and Pennsylvania Public Utility Commission v. Friedman

Court: Supreme Court of Pennsylvania

Date Filed: July 9, 2021

Update: On Dec. 22, 2021, the Supreme Court of Pennsylvania affirmed the Commonwealth Court’s order, holding that Pennsylvania’s Office of Open Records did not have the authority to determine whether a record contains confidential security information under the CSI Act.

Background: In February 2019, Eric Friedman submitted a request under Pennsylvania’s Right to Know Law seeking records possessed by the state’s Public Utility Commission regarding blast calculations for a natural gas pipeline. The PUC denied Friedman’s request, arguing that the records were confidential security information under the Public Utility Confidential Security Information Disclosure Protection Act, known as the CSI Act, and that the records were part of a noncriminal investigation.

On appeal, the state’s Office of Open Records held that the PUC did not prove that the records are confidential security information, but that the PUC did demonstrate that certain records are exempt under a section of the Right to Know Law and that some records relate to a noncriminal investigation. The OOR ruled that the PUC must disclose an investigative report relating to the pipeline, with blast radius calculations excluded from the disclosure.

On appeal to the Commonwealth Court, the PUC argued in part that the OOR did not have the authority to determine whether a record contains confidential security information under the CSI Act. The Commonwealth Court adopted the PUC’s reasoning.

Our Position: The Pennsylvania Supreme Court should reverse the Commonwealth Court’s decision and hold that the OOR has the authority to determine whether records constitute confidential information subject to the CSI Act.

• Journalists rely on access to public records to report on natural gas and oil pipeline projects.
• Denying the OOR its statutorily granted authority to review cases like this one could have a detrimental effect on journalism and the public’s right to know.
• Denying the OOR its statutorily granted authority to review cases like this one would also be contrary to the purpose of Pennsylvania’s Right to Know Law, which was to remove litigation barriers to access.

Quote: “[D]enying the OOR its statutory authority to review cases like this one could deter journalists from pursuing information in the public interest. The financial cost of appealing to the Commonwealth Court may be prohibitive for local news organizations. In addition, the judicial appeals process can be lengthy, depriving journalists of the ability to provide timely information to their readers and viewers.”