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A whistleblower’s letter critical of PPL Electric Utilities shouldn’t be released to the media because it was never officially considered by members of the state Public Utilities Commission, lawyers for the PUC argued in a brief filed Wednesday with Pennsylvania’s highest court.

The Times Leader and a statewide media coalition are pitted against the PUC in a freedom of information fight over the letter, which took PPL to task for its handling of a snowstorm nearly four years ago.

In their brief to the state Supreme Court, PUC attorneys Steven K. Bainbridge, Eric A. Rohrbaugh and Bohdan R. Pankiw argue that the letter and related investigative documents are not subject to release under the state’s open records law because they were never presented to the commissioners for review, and therefore not relied upon by the commissioners in taking action against PPL.

PUC’s investigative function “would be greatly impaired,” the agency’s lawyers argue, if its internal documents were subject to disclosure after official action was taken by the commissioners regarding an investigation of a public utility.

The letter

The tip letter — reportedly written by a PPL employee and sent to the state Public Utility Commission in November 2011 — alleged that a PPL crew one month earlier was transferred from a higher priority job to a lower priority job while working to restore service in a snowstorm that knocked out power to more than 388,000 PPL customers.

PPL said the crew received a wrong assignment, resulting in a restoration delay of about four hours that affected some 1,500 customers.

Based on the tip letter, the PUC Bureau of Investigation and Enforcement launched an informal investigation. Without a formal complaint or public hearing, the PUC and PPL entered a settlement that required PPL to pay a $60,000 civil penalty in 2013.

The court case

The Times Leader and The Morning Call filed a right-to-know request seeking a copy of the letter.

The media coalition also includes The Associated Press, The Patriot News/PennLive.com of Harrisburg, The Philadelphia Inquirer, Philadelphia Daily News, The Pocono Record of Stroudsburg, LNP of Lancaster, Calkins Media and Times News of Lehighton.

The state Office of Open Records ordered the tip letter released. PPL and the PUC appealed the decision to Commonwealth Court, which backed them in a December ruling.

But the Supreme Court in June agreed to hear an appeal, acknowledging that the issue is of “substantial public importance.” The court noted that Commonwealth Court’s ruling could affect “public access to documents involved in (other) investigations of the Public Utility Commission and resulting settlements,” to which state lawmakers “sought to provide broad access.”

Brief arguments

In a brief submitted last month, lawyers representing the media took aim at arguments that the letter is shielded from release because it was linked to an investigation.

Rather, they argued, state law refers specifically to PUC investigations, and requires that “with respect to its investigations, it shall make part of the public record and release publicly any documents relied upon” by the PUC.

The media lawyers also pointed out that state law does not make any general exemption for investigative records.

The PUC’s lawyers fired back on Wednesday. Their contentions include:

• The confidential tip letter and other documents were never presented to commissioners and were not relied upon in making a decision.

• That the Office of Open Records was wrong in its determination that the documents were subject to disclosure under the Public Utility Code, and not governed by Right to Know Law.

• That they are, in fact, exempted from release under the state’s Right to Know Law.

• In the event the Supreme Court finds the Public Utility Code does apply, the PUC’s lawyers say, the accuser’s identity should be redacted, as required under the Public Utility Code.

Release of such documents, PUC’s lawyers say, “could lead to public utilities and their employees being less likely to cooperate and provide relevant information during investigations out of fear of retaliation or public embarrassment.”

The media coalition’s attorney, Craig J. Staudenmaier of Harrisburg, previously has said if the Commonwealth Court’s decision is allowed to stand, it could be used to hinder future access to public documents.

By Roger DuPuis

[email protected]

Reach Roger DuPuis at 570-991-6113 or on Twitter @rogerdupuis2.