The Oklahoma Corporation Commission should not have closed public access in 2004 to all the annual reports it receives from telephone companies, the commission's legal counsel recently said.
Andrew Tevington said the 2004 order violates the Open Records Act by exceeding the commission's statutory authority to close public utility records in its possession.
"The scope of the order is absurd. It goes against the State’s policy that records will be open unless a good, supportable, indiviualized reason exists otherwise," said Tevington in written testimony submitted to the commission on Aug. 11.
He urged commissioners to revoke the 2004 order and to decide case by case whether any information in each telephone company's annual report should be kept confidential.
But Attorney General Scott Pruitt said,
Nothing in the express language of the [Open Records] Act dictates or restricts the manner in which the Commission makes such a determination - whether it be on a case-by-case basis particular to a specific utility or a determination that a category or type of information is confidential as applied to several utilities, as in the case of the Annual Reports.The written testimony by Pruitt and Tevington was given as the commission considers a request by one of its officials to change the rule.
David B. Dykeman, director of the Public Utility Division, is asking commissioners to issue an order determining what information required to be in the annual report "will be deemed proprietary, confidential, and competitively sensitive."
Dykeman also wants the commission to determine "what records will be deemed proprietary, confidential, and competitively sensitive in Protective Orders."
A hearing on the merits of the request is scheduled before Administrative Law Judge Jacqueline Miller for 10:30 a.m. Thursday in Room 301 of the Jim Thorpe Building in Oklahoma City.
Tevington said the only testimony heard in 2004 was from representatives of four telephone companies and the then-Public Utility Division director.
Order No. 493818 "allowed all information in all telephone annual reports to be confidential."
Tevington contended that "goes too far for four reasons":
- "The order is too broad. Read literally it applies even to the names of telephone companies and other information already in the public domain."
- "The order covers too many telephone utilities. ... It applies across the board to all telephone companies without any determination of whether a specific company’s information requires protection."
- "The order covers all of each telephone utility's annual reports without specific, individualized consideration of the information in any report. No attempt is made to discern whether any trade secrets or sensitive commercial information is even in the report."
- "Order No. 493818 is a general order, analogous to an administrative rule, and was entered without appropriate public participation as required by" state law.
He also emphasized that the Open Records Act does not create a right of individual informational privacy.
"In the ordinary course of government business, any person who submits information to a state agency has no right to keep this information confidential," Tevington said. "An expectation of confidentiality may exist only when the Legislature or Congress creates a specific exemption.
"Furthermore, even when an expectation may be created by statute, the party seeking confidentiality bears the burden of proving the specific record should be kept confidential.
"These provisions show clearly stated legislative policy requires records coming into the possession of a state agency to be presumed open to public access."
Under the Open Records Act, "The Corporation Commission shall keep confidential those records of a public utility, its affiliates, suppliers and customers which the Commission determines are confidential books and records or trade secrets." (OKLA. STAT. tit. 51, § 24A.22(A))
Based on that statutory language, Tevington argued, "The commission's statutory ability to decide some utility information may remain confidential does not allow the OCCC to make all information confidential.
"The Legislature did not say the Commission may keep records of public utilities confidential; instead, it said OCC may 'keep confidential those records of a public untility . . . which the Commission determines are confidential books and records or trade secrets.'" (emphasis included)
Tevington concluded that the order closing all the telephone company annual reports "goes beyond the legislative grant of authority."
The statutory language "indicates a decision concerning confidentiality must be made about one utility at a time," he said. "It is not appropriate to aggregate all public utilities of a class and make a blanket pronouncement about access.
"The Open Records Act requires an individualized determination of whether a specific utility's information should be protected from public scrutiny. One size does not fit all."
Tevington said the 2004 order "is overbroad both as to the number of entities it covers and as to the type of information is covers" and violates "the Open Records Act's requirements for specific findings."
He also noted that the telephone companies receive money from the Oklahoma Lifeline Fund and the Oklahoma Universal Service Fund.
"These legislatively created funds require openness to public scrutiny to assure the citizenry that the monies are spent appropriately by the correct parties," Tevington said. "Information concerning telecommunications lines and the leadership of telephone companies may provide necessary information for the public to make sure these funds are spent appropriately.
"The use of public monies by telephone utilities demands openness of their records in the commission’s possession."
The Oklahoma Corporation Commission consists of Chair Dana Murphy, Vice Chairman Jeff Cloud and Commissioner Bob Anthony. The three commissioners are elected by statewide vote to serve six-year terms.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.