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Office of the People's Counsel v. Public Service Commission of the

June 23, 2011

OFFICE OF THE PEOPLE'S COUNSEL, PETITIONER,
v.
PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA, RESPONDENT, AND POTOMAC ELECTRIC POWER COMPANY, INTERVENOR.



Petition for Review of Orders of the District of Columbia Public Service Commission (15831,15989, 15915 and 16066)

The opinion of the court was delivered by: Thompson, Associate Judge:

Argued April 26, 2011

Before RUIZ and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

In the matters before us, the District of Columbia Office of the People's Counsel ("OPC") seeks review of a series of orders of the Public Service Commission of the District of Columbia (the "Commission") that rejected OPC's requests that Potomac Electric Power Company ("Pepco") be compelled to provide OPC with copies of certain diagrams and maps depicting Pepco electrical substations, transformers and feeders (documents that OPC seeks in connection with its efforts to analyze the causes of electrical outages and electrical service reliability problems experienced by District of Columbia consumers). We remand these matters to the Commission for findings about whether (and, if so, for an explanation of why) the office-inspection restriction that the Commission ordered is "necessary" to protect against public disclosure of the documents that OPC seeks to obtain. D.C. Code § 34-1118 (c) (2001).

I.

On June 17, 2008, the Commission initiated Formal Case No. 1062, an investigation into the causes of an electrical power outage that affected a large section of the District of Columbia on June 13, 2008, and that originated at Pepco Substation #52, located on 10th Street, N.W. To carry out its role in that investigation,*fn1 OPC made a number of document and information requests to Pepco, including, inter alia, a request for true-to-size copies of the "one-line diagram of [Pepco's] Tenth Street substation"*fn2 and the "diagram of the relay protection scheme for each of the supply transformers" at that substation. Pepco provided a narrative description of the "relay protection scheme for the four transformers," and allowed OPC representatives to inspect the relevant diagrams (after OPC executed a confidentiality agreement prepared by Pepco (the "Confidentiality Agreement")), but Pepco declined to provide OPC with copies of the diagrams. Pepco asserted that the requested information was "confidential" and would be withheld for "legitimate national security reasons," but could be "viewed by appointment at Pepco's office."*fn3 Thereafter, OPC filed a series of motions asking the Commission to compel Pepco to provide OPC with copies of the requested diagrams. In Order No. 15831, issued on June 7, 2010, the Commission directed that Pepco allow OPC personnel to review the requested documents "in detail, in person at [Pepco's] offices, and otherwise in accordance with the parties' confidentiality agreement, except that copying and/or removal of any of the documents from Pepco's offices is prohibited."*fn4 The Commission denied OPC's request for reconsideration of that ruling.*fn5

In the meantime, in conjunction with Commission Formal Case Nos. 766, 982, and 991 (all of which pertain in part to the reliability of the Pepco electricity distribution system), OPC had requested from Pepco, inter alia, "copies of maps and diagrams" pertaining to "feeders in residential and commercial neighborhoods in the District" and "engineering studies performed on the feeders in Ward 4 and the Crestwood/Carter Barron community." Pepco eventually produced copies of the engineering studies, but withheld maps and diagrams that "depict the utility's critical infrastructure" information, stating that these could be viewed by appointment at Pepco's offices. OPC filed a motion asking the Commission to compel Pepco to produce copies of the withheld documents. In Order No. 15989, issued on September 23, 2010, the Commission denied OPC's motion to compel but - repeating the terms it imposed in Order 15831 - "direct[ed] Pepco to allow OPC a reasonable opportunity to review the requested documents in detail, in person at [Pepco's] offices, and otherwise in accordance with the parties' confidentiality agreement, except that copying and/or removal of any of the documents from Pepco's offices is prohibited." Again, the Commission denied OPC's request for reconsideration of its ruling.

There followed the instant petitions by OPC for review of the Commission's orders (including its orders denying reconsideration: Order No. 15915, issued on August 6, 2010, and Order No. 16066, issued on November 22, 2010).

II.

Before turning to the merits, we address briefly the issue of our jurisdiction to review the Commission orders now, when the formal proceedings to which they relate (Formal Cases 766, 982, 991, and 1062) have not yet concluded. We raised this issue sua sponte at oral argument, pointing out that the Commission's rulings on OPC's motions to compel are analogous to discovery rulings, which our case law typically treats as interlocutory and not immediately reviewable. See, e.g., Crane v. Crane, 657 A.2d 312, 315 (D.C. 1995) (explaining that "[d]iscovery orders typically bespeak their own interlocutory character," and thus ordinarily are not final for purposes of appeal) (citation and internal quotation marks omitted); cf. Office of the People's Counsel v. Pub. Serv. Comm'n, 414 A.2d 516, 517 (D.C. 1980) (dismissing petition for review of Commission order on ground that evidentiary rulings "are interlocutory and non-appealable"). For several reasons, we have concluded that we do have jurisdiction to review the challenged rulings.

First, our case law recognizes that "[i]t is not necessary that an order be issued at the conclusion of a proceeding; a 'final' order may be issued and reviewed at any point during a Commission proceeding." Potomac Elec. Power Co. v. Pub. Serv. Comm'n, 455 A.2d 374, 378 (D.C. 1982); see also Goodman v. Pub. Serv. Comm'n, 467 F.2d 375, 377 (D.C. Cir. 1972) ("For purposes of judicial review[,] the finality of an agency order depends upon the nature of the order rather than its chronology in relation to the whole of the agency proceedings."). Second, an order may be final and subject to immediate review if it "den[ies] a right," Potomac Elec. Power Co., 455 A.2d at 377, and the Commission rulings involved here restrict OPC's "right to obtain" documents reasonably relevant to the Commission investigation. D.C. Code § 34-1118 (c). Thus, "the impact of (the Commission's order) is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage." Chesapeake & Potomac Tel. Co. v. Pub. Serv. Comm'n, 378 A.2d 1085, 1087 n.8 (D.C. 1977) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 152 (1967)). Third, a "relevant consideration[] in determining finality [is] whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication." Goodman, 467 F.2d at 377. Here, neither the parties nor the intervenor has suggested that our review of OPC's petitions will disrupt the ongoing proceedings before the Commission.

Fourth, "[a]nother factor that warrants consideration is whether postponing review will cause irreparable harm to the interests of the party seeking review." Potomac Elec. Power Co., 455

A.2d at 378. Here, OPC contends that understanding the design and relay protection scheme for the transformers must be "done through visualization," i.e., through study of "drawings that show the requested information"; and that without the requested diagrams, "it is impossible to tell where and what actions can be taken to improve this vital part of Pepco's distribution system." It further asserts that the "Commission's added restriction against making copies, partial copies or other representations of the operating documents" and the resultant lack of continuous access to the documents "render[] OPC's access ineffective and virtually valueless," impede its "ability to perform a thorough analysis" of the issues while the Commission investigation is underway,*fn6 and "greatly defeat[] OPC's ability to meaningfully participate in the formal case," all to the "severe detriment" of the public whose interests OPC is charged with representing. See D.C. Code 34-804 (d). In addition, it is unclear when the underlying formal Commission proceedings will conclude,*fn7 and whether, when the Commission concludes its investigation, it will issue an order as to which OPC could seek review by this court. Cf. Crane, 657 A.2d at 316 (explaining that a trial court's order denying discovery is a final appealable order if dismissal of an appeal "would effectively deny the aggrieved party appellate review at any time"). It appears to us that the issues ...


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