In the ongoing investigation into a June 2008 outage that left thousands without power, the D.C. Court of Appeals gave the city's Office of People’s Counsel – the agency tasked with representing utilities consumers – a win today.
OPC wants Pepco to turn over maps and diagrams of electrical substations and other elements of Pepco's electrical infrastructure as part of its investigation into the outage. Pepco objected, arguing that the information could pose a national security threat if it fell into the wrong hands, despite the fact that OPC agreed to keep it confidential.
The D.C. Public Service Commission sided with Pepco, issuing an order that OPC could view the documents at Pepco’s office but couldn’t make any copies. OPC appealed, and the court heard oral arguments on April 26.
In an opinion (PDF) released this morning, the appeals court found that the commission had failed to fully investigate Pepco’s claims of a possible national security threat before reaching its decision, especially since OPC had already offered to keep them confidential. The case came before Associate Judges Vanessa Ruiz and Phyllis Thompson and Senior Judge Frank Nebeker.
“The Commission made no finding — and it had no ostensible basis for a finding — that a restriction on OPC’s obtaining copies of the maps and diagrams was 'necessary' to protect the documents,” they wrote.
The judges vacated the commission’s previous findings and ordered that they reconsider OPC’s request and Pepco’s objection.
Acting People's Counsel Sandra Mattavous-Frye said she is “elated” with the court’s ruling, which also reaffirmed OPC’s statutory authority to investigate public utilities. She said that as the agency proceeds with future investigations into Pepco’s service reliability – a hot topic in light of major outages in recent years - the ruling will set up guidelines for OPC’s access to information.
“The commission will, as we asked, make a formal determination on the record about … what the parameters should be,” she said. “The commission never made that kind of finding, they just relied on Pepco’s assertion that it was a security matter.”
Randolph Elliott of Washington’s Miller, Balis & O’Neil argued OPC’s case. He referred questions to the agency.
Public Service Commission attorney Richard Herskovitz argued before the court, but referred questions to the commission’s general counsel, Richard Beverly.
“We sought guidance from the court on reviewing OPC’s request for unrestricted access to infrastructure information in an environment of heightened concern over potential attacks against the infrastructure itself,” Beverly said. “The court has remanded this matter to the commission with guidance and we will apply it.”
A Pepco spokesman said the company is still reviewing the ruling.