Q: Our city has been trying to build a power plant. The 5-year CEC permit is about to expire. Can the City keep secret the development map and property owners names on the building extension petition? The petition for another 5-year extension was filed with the CEC before the Council ”formally” voted its support. Isn’t it suppose to be approved by vote and then filed?
A: The Brown Act governs the extent to which the meetings of local agencies must be conducted in a manner that is open to the public. If the city council was otherwise required to vote as a body to petition for a 5-year extension, that vote would have to have been conducted in a open, public meeting.
However, the Brown Act itself does not indicate which decisions of an agency must be made by a vote of the governing members. So I cannot tell you one way or another whether such a vote was in fact required.
That being said, the Public Records Act, Govt. Code sections 6250 et seq., governs both the City’s and the Energy Commission’s duty to provide members of the public access to governmental records. Although numerous categories of specific records are exempt from the Act’s disclosure provisions, I am not aware of any exemption that specifically applies to the information in these permit applications. Thus, you may want to request the information both from the City and from the CEC. The CEC’s public records access provisions can be found at:
http://www.energy.ca.gov/public_records/
According to its website, the CEC allow third parties, such as your City, to request that information submitted to the CEC be “stamped” as exempt. If a record is so “Stamped,” then the person seeking access to it, needs to petition the CEC’s chief counsel for access. Here is the procedure for doing so as explained on the CEC’s website. This procedure is unusual — I don’t know of another state agency that has a similar procedure. But I don’t know that it violates the law in any way.
How does a third party apply to the Executive Director to get his records exempt from disclosure?
Sometimes when a third party discloses a record to the Energy Commission, this third party is unsure as to if their document will be exempt from disclosure by operation of law. That is to say, they are unsure if their record will be exempt through an exemption in the PRA, or if the Energy Commission would find it exempt through the PIE balancing test.
In response to this uncertainty, the Energy Commission has developed a procedure by which a third party may apply to the Executive Director to have his record “stamped” as being exempt from disclosure.
In order for a record to be stamped as exempt in this way, the disclosing party must convince the Executive Director that the PRA or some other provision of law authorizes the Energy Commission to treat the record as exempt.
What difference does this “stamp” make?
If a request to inspect or copy a stamped record is denied by Chief Counsel, the Energy Commission has an internal appeal procedure by which the requesting party may appeal the decision. This process is described in greater detail below.
Conversely, no internal review process exists for records that do not have this stamp.
Is there any way that I may access a record that has this confidential “stamp”?
Access to these records is unlikely but not impossible.
To begin this process you would petition the Chief Counsel. In this petition you would need to make your case for why you should have access to the confidential record.
The Chief Counsel will respond in writing as to whether your request will be accepted or denied. If your request is denied, the Chief Counsel will outline the reasons for its denial.
Is this decision final?
Energy Commission regulations allow you to request that the full Commission review the Chief Counsel’s decision on the ‘stamped’ record. This request must be made within 14 days of the denial of your request.
The Commission will either agree with the decision of Chief Counsel and withhold the record, or the Commission will disagree and allow for the record to be disclosed.
Is there an internal review process for disclosure decisions on records without the “stamp?”
No. If you request a record and the Chief Counsel denies your request for reason of exemption by statute (PRA, PIE), that decision is final. There is no way to appeal it within the Energy Commission.
May I use the courts to compel disclosure of records?
There is always the option of pursuing legal remedies to obtain the requested records.
For further assistance in pursuing this method of disclosure, it is best to contact an attorney.
A word of caution about these suits with the courts: Courts have the power to award the Energy Commission its cost of going to court if the Court finds your legal action regarding disclosure to be clearly frivolous.
However, if you are successful in your legal action and the court does compel disclosure, you will likely be able to recover your legal fees from the Commission.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.