I1204010 Transcript PHC 1

7/31/2019 I1204010 Transcript PHC 1

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PUBLIC UTILITIES COMMISSION, STATE OF CALIFORNIA

SAN FRANCISCO, CALIFORNIA

1

SAN FRANCISCO, CALIFORNIA, June 25, 2012

10:13 a.m.

* * * * *

ADMINISTRATIVE LAW JUDGE VIETH: We'll

be on the record. This is the time and place

for the prehearing conference in

Investigation I -- that's shorthand for

Investigation -- 12-04-010. And the title of

the Investigation reads, "Order Instituting

Investigation on the Commission's Own Motion

into the Operations and Practices of Pacific

Gas & Electric Company regarding Anti-Smart

Meter Consumer Groups."

I'm Jean Vieth, an Administrative

Law Judge here at the Commission, and I will

be conducting today's hearing. The assigned

Commissioner is Commissioner Florio. He is

aware of the hearing. He may join us. I am

not absolutely certain what his schedule

holds this morning.

I want to apologize first to

everyone regarding the confusion over the

start time. Both the notice of prehearing

conference and the daily calendar reported

this hearing at 10:00 o'clock. Somehow the

court reporters notice posted outside

indicated 1:30, but I see that people -- some

people I expected or surmised would be here


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are here, so I gather that you got proper

notice.

I also want to state that the

Ecological Options Network told me this

morning that they wished to videotape this

morning's prehearing conference, and I told

them that I would not permit that this

morning. I had no notice of it, and I

advised both General Counsel and the

Executive Director and Chief of Security. I

have been told General Counsel would look

into the matter and would advise them on

their opportunity to videotape in the future,

should there be future hearings.

This is an Investigation. It's an

adjudicatory proceeding as categorized by

statute, and it's the Commission in its most

judicial role. It is my intention that

today's hearing go forward fairly and with

decorum and civility for all. The fact that

there are serious charges alleged does not

mean that we throw civility and decorum by

the wayside, so I hope that's clear.

And next I want to talk just very

generally about prehearing conferences at the

Commission. The OII specifically ordered me

to convene a prehearing conference. And

generally at the Commission, the reason for a


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prehearing conference is to ascertain who the

parties are, what the issues are,

particularly if one goes -- if we all go

forward to evidentiary hearing, and then to

set a schedule for that hearing if it's

necessary to do so.

Vis a vis this Investigation, my

interest here today is a bit more focused.

I'd like to leave this hearing understanding

what facts are in dispute, my reason being if

there are no material facts in dispute, there

is nothing to try; what's at issue here from

a legal standpoint, which requires briefs

potentially if there's disputed legal issues;

and what process, then, we need to develop to

resolve this Investigation in a timely and

orderly manner.

Under statute, we have 12 months

from initiation to resolve it, unless the

Commission itself issues a Decision extending

that time. And I'd also like to have a

clearer idea of the relief being sought.

Therefore, I think the place to

begin is with party status. The OII makes

the Commission's Consumer Protection and

Safety Division a party. I have had several

written motions for party status. Those have

been filed, but I've not acted on them, and


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I'm gathering that there's going to be some

oral motions here today.

So let's go off the record just a

moment.

(Off the record)

ALJ VIETH: Okay. Back on the record.

A little overlap here between

requests for party status via these yellow

appearance records and the written motions,

but that's not a problem.

The Commission rule that governs

party status is Rule 1.4, which is entitled,

"Participation in Proceedings." And that

rule states, and I paraphrase, that one who

requests party status, whether it be orally

or in writing, must make a two-part showing.

And the first part is that one must disclose

who it is that seeks party status and the

interest of the person or entity in the

proceeding. Who it is and the interest.

And then the second major prong of

the showing is one must state what the

factual and legal contentions of that person

or entity are and show that those contentions

are reasonably pertinent to the issues

already presented.

And so I'm going to start with the

oral motions. And I'm going to start with


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TURN. Mr. Long, you are here today, but it

-- according to the form I've got,

Mr. Nusbaum is going to be the lead; is that

correct?

MR. LONG: He'll be the attorney of

record, that's right, your Honor. I'm sort

of pinch-hitting the early stages of the

case, but I'll be turning the case over to

him.

ALJ VIETH: So I think you understand

what I would like to hear from you this

morning.

MR. LONG: Sure. TURN is a

longstanding intervenor. We've participated

in numerous investigations over the years.

TURN is a consumer organization concerned

about the allegations presented by CPSD in

its investigative report, and we're concerned

and interested that this type of alleged

behavior does not occur again.

As to the factual and legal

contentions, we are interested in supporting

the contentions made by CPSD. We're

particularly interested and concerned about

the allegations that higher-up officials,

those who supervised Mr. Devereaux, appeared

to have known about these e-mails, reviewed

these e-mails. And we're interested and


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concerned about whether -- how PG&E dealt

with that fact and whether appropriate

actions were taken to prevent this kind of

incident from occurring again. So that will

be one of the focuses of our participation.

We're also interested in appropriate

remedies, assuming the allegations are

proven, including appropriate fines and other

remedial measures.

ALJ VIETH: And you would participate,

how do you envision? No schedule has been

set. I understand that. But you intend to

participate actively?

MR. LONG: We do intend to participate

actively. We don't know whether we want to

present testimony or not. We would say at

this time it's unlikely. CPSD presented a

good report. We have not had an opportunity

to review the unredacted version of the

report yet, so we do not know all the facts

yet.

ALJ VIETH: And you would intend to

coordinate with CPSD to avoid duplication?

MR. LONG: Yes, we would.

ALJ VIETH: Very well. Then I'll grant

your motion for party status.

MR. LONG: Thank you.

ALJ VIETH: Next, I have --


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Off the record a moment.

(Off the record)

ALJ VIETH: Back on the record.

Okay. I have three written motions.

One from a Joshua Hart, who also completed an

appearance this morning, one from the EMF

Safety Network, and one from CARE, which has

also completed a yellow form. I'm sorry.

They're no longer called appearance forms.

That's outdated nomenclature. Apologies.

The reason I haven't granted any of

the written motions, in my judgment they're

substantively defective. They don't answer

all the parts of the rules, but we can solve

that this morning. We can address the parts

that your written motion does not. What I've

seen in the CARE and the EMF and the Joshua

Hart motion is an identification of who each

of you is and that you're interested in the

staff report. In fact, most of those motions

cite portions of the staff report.

But that doesn't tell me what your

issues of concern are. It doesn't tell me --

it doesn't address at all the second part of

the rule, which is the factual and legal

contentions you wish to focus on. And it

doesn't tell me how -- and at this point

without a schedule -- you envisage


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participating. Is that clear? I'd be happy

to try to explain this better or in greater

detail if it seems fuzzy.

MR. HOMEC: I'm Martin Homec, and I'm

representing Mr. Hart and CARE in this

proceeding.

ALJ VIETH: And Mr. Homec, you're no

doubt familiar with Rule 1.4?

MR. HOMEC: Yes.

ALJ VIETH: Let's take them one at a

time. Why don't we take your representation

of Joshua Hart? And if it's amenable to the

two of you and he wishes to address these

questions, he certainly may.

MR. HOMEC: Okay. I'll just speak

separately so the court reporter --

ALJ VIETH: Absolutely. Speak

separately so the court reporter has a chance

of taking down a transcript. Thank you for

remembering those words here from your days

in the past. ]

MR. HOMEC: Mr. Hart's organization was

the organization that was impacted by the

allegations. There are e-mails and other

documents which we believe show that their

privacy was invaded, their strategy was

divulged, by some wrong activities by

defendant. So what we would like to ask for


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is remediation or some remedy for that damage

that was done that divulged strategy to the

opponents of this particular anti SmartMeter

campaign, and to do that we need discovery.

And we believe that there's -- that there's

more that we haven't seen and we would like

the Commission to order Pacific Gas and

Electric and other interested parties to

provide all the e-mails and all the documents

to Joshua Hart to review and then set up a

new prehearing conference when we know the

scope of the offense and what remedies we

need.

ALJ VIETH: Okay. I see. If I grant

party status -- well, let me back up from

that. By statute what happens after this

prehearing conference, and you probably know

this, Mr. Homec, is that the assigned

Commissioner must issue a scoping memo, and

the scoping memo will indicate the issues

within the scope of this Investigation and

the schedule.

If I grant party status, you will be

obliged to participate, if you choose to

participate at all, within the scope of that

scoping memo and in accordance with the

schedule of that scoping memo. So I have

heard what you have said here today, and what


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I understand is you essentially want to

expand the scope of the Investigation

somewhat.

MR. HOMEC: Yes.

ALJ VIETH: And have you done some

preliminary research into the Commission's

ability to offer the sorts of remedies you're

seeking?

MR. HOMEC: I have.

ALJ VIETH: And you think those are

remedies the Commission can order as opposed

to the Court?

MR. HOMEC: Some of them, yeah --

ALJ VIETH: We cannot award damages.

You know that?

MR. HOMEC: Right. So some of them are

better --

ALJ VIETH: By statute we cannot.

MR. HOMEC: Without the discovery we

don't know the entire scope of the

proceeding. We have viewed some of the

materials, but we don't believe it shows the

full extent of the invasion of privacy of

Mr. Hart's group.

ALJ VIETH: You have seen -- I assume

you have seen the staff report version that

PG&E attached to its motion for a protective

order?


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MR. HOMEC: Right.

ALJ VIETH: You have read the OII and

you know there is a preliminary scoping memo

in the OII.

MR. HOMEC: In our experience we

believe there's more than that. And we would

like to conduct discovery and find it and

then determine -- we will be participating in

the proceeding, but we will just be

concentrating on discovery instead of

analyzing the information that's out there

exclusively.

ALJ VIETH: Okay. And I am

requesting -- let me ask one more question.

Have you approached either CPSD or PG&E about

discovery to date and discussed with them

whether you might commence discovery under a

nondisclosure agreement? Has there been that

sort of --

MR. BOYD: I hadn't.

MR. HOMEC: CARE didn't, and Joshua

Hart did not.

MR. BOYD: I filed --

ALJ VIETH: We will get to you,

Mr. Boyd. Thank you. I am going to try to

keep this on track with this party first.

Very well. What I'm going to do is

grant Joshua Hart party status, but again,


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the proviso, that means you will be able to

participate within the scope and schedule as

the assigned Commissioner issues it. And

whether it is going to stray very much from

the Investigation, which the Commission has

already issued, I don't know. What I do know

is that the relief that the Commission may

grant is rather narrowly prescribed by

statute. The Commission can fine PG&E

potentially. The Commission can perhaps

undertake other sorts of orders vis--vis

PG&E's practices and procedures. But the

Commission cannot award damages to a private

party. The Legislature has not given us that

authority.

Mr. Shapson, did you want to add

something at this point?

MR. SHAPSON: I just have a question,

your Honor. Thank you.

ALJ VIETH: Yes.

MR. SHAPSON: The motion of Joshua

Hart, motion for party status, doesn't

indicate that Mr. Homec is his attorney of

record. And I am just wondering who I am

going to be communicating with or CPSD is

going to be communicating with, Mr. Hart, if

we need to substitute attorneys, or if I

should be communicating with Mr. Homec or


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Mr. Hart directly?

ALJ VIETH: Today Mr. Homec on behalf

of both CARE and Joshua Hart has completed

this yellow form. And what happens with this

yellow form is the court reporter enters this

information in the transcript and will pass

it on to the Process Office. And what that

means, unless Mr. Hart tells us differently,

is that you must -- as an attorney you must

communicate with Mr. Homec who is his

designated representative.

If Mr. Hart wants to talk with you

differently, then he needs to let us know

that this yellow form was completed for

different reasons than it would seem today.

So let's go off the record for a

moment.

(Off the record)


Mr. Hart, Mr. Homec, what is your

desire here? We need to all be clear so that

people do not step across the bounds

improperly.

MR. HOMEC: I will be representing

Mr. Hart.

ALJ VIETH: So if PG&E has questions

for Mr. Hart or CPSD has questions for

Mr. Hart, both of them should contact you?


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Likewise, any other party that we name today?

MR. HOMEC: Yes.

MR. HART: Yes.

ALJ VIETH: Thank you. Sorry to be so

laborious, but it is so important to be

clear. And Mr. Shapson, thank you for

raising that so that it is clear.

MR. HART: Your Honor, if I may.

Your Honor, Stop Smart Meters and

the other organizations who were the victims

of PG&E's spying are engaged in activities

and educational efforts to watch dog for

public safety and health purposes. Instead

of engaging our groups in trying to resolve

public issues of concern regarding health and

safety of the SmartMeter program, at least

one member of the PG&E staff, PG&E William

Devereaux, according to the CPSD report,

infiltrated and obtained e-mails. That is a

matter of record in the Investigation. We

seek full, unredacted copies to be available

to the public. We believe that there is a

strong public interest in a corporation such

as PG&E, identities of those who were

involved in the spying and what they knew and

when they knew it. We seek full public

release of e-mails, internal e-mails between

the PUC and PG&E. And we consider this of


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significant public interest as well as of

personal interest in the aspect that our

e-mails were publicly divulged without our

permission to the media, and we continue to

be concerned about that, those violations.

ALJ VIETH: Thank you.

There are at least two issues there.

One goes to the motion for protective order

which governs the -- it doesn't govern -- it

concerns the staff report, and we will get

there this morning. The issue of your

discovery with PG&E is something first -- or

with CPSD -- is something first you must seek

to work out with them. You must meet and

confer, you must explain what it is you want,

and you must see if you can't resolve that.

The Commission is not going to order here

today either must undertake the sort of

discovery that you are requesting. A good

amount has been done already. But as a

party, you need to consult with other parties

first. That is just normal practice.

Okay. I think we have dealt with

the issue of party status of Mr. Hart.

And now, the next, which is kind of

related, is EMF Safety Network. I will move

to that one next because I have the yellow

form and a written motion.


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So whom do I have here representing

EMF Safety Network?

Off the record.


Now I want to move to the issue of

your request for party status. So I need to

tie the request more closely to our rules

than your written motion does. So this is

your opportunity to explain more carefully

not only who you are, but your interest and

then the factual or legal contentions you are

interested in here and the participation you

seek. Thank you.

MS. MAURER: Your Honor, could you

please explain for me the difference between

TURN's participation and Joshua Hart's

participation so I can understand where to

direct my statements? Because I feel I am a

little confused about the parameters of

participation.

ALJ VIETH: I'm really not very able to

explain that because I don't control the

desire of a party to participate. I don't

control that party's legal issues or factual

issues.

But I think you were here when

Mr. Long spoke about TURN's interest, and he

he was focused in particular, if I recount


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this correctly -- and please correct me if I

do not, Mr. Long -- I am not going to ask the

court reporter to reread the transcript

because that is very time consuming -- but he

said TURN was particularly focused on whether

or not corporate officers at levels above

Mr. Devereaux were knowledgeable of his

activities and issues related to that

knowledge, if it existed, and that he was

interested in the issue of appropriate fine.

Would that be correct, Mr. Long?

MR. LONG: And other appropriate

remedies as well.

ALJ VIETH: Very well. Again, what I

have heard from Mr. Homec and Mr. Hart is

that they have some desires to do -- they

want remedies for the violations which they

believe have hindered Mr. Hart and his

activities but they can't say more about that

until they've read the full report. They

also wish to do some discovery. I have not

granted that. I have explained to them they

need to go to the other parties.

So this is your opportunity. Having

read the Commission Investigation, which is

the Commission's charge, the Commission had

the full staff report. It read that report.

And all Commissioners said based on this we


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have probable cause to commence the

Investigation.

We will turn to Mr. Shapson later,

but the staff report really is drafted in

such a way that they seem to want to move on

very quickly. At least that is one

interpretation. The case is made.

Let's talk about fines.

Mr. Shapson may or may not agree

with that. So what you need to tell me is it

doesn't really matter what TURN's interest is

or Mr. Hart's interest is. What is the

interest of the EMF Safety Network? Does

that help?

MS. MAURER: Thank you for that

explanation. Yes, it does.

While we filed both the motion for

party status and we filed a protest for

PG&E's motion for protective order --

ALJ VIETH: Put the protective order

matter aside because we will get to that

later. This is about party status. And you

explain basically what EMF is, EMF Safety

Network, but in my judgment you don't explain

exactly what you are interested in. You cite

a lot of the staff report, which doesn't help

tell me what you're interested in. I know

what the staff report says. What are you


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interested in? If you are granted party

status, how do you intend to participate

here? What issues do you wish to pursue?

MS. MAURER: Well, I am very interested

in the protective order and removing that so

the public has access to who -- not only who

were involved in this issue with Devereaux,

but who were -- not only those at PG&E, but

who also were the third parties involved.

And particularly, there were people involved

at the CPUC, because when you looked at the

redacted documents you could see the e-mails

were at the CPUC.

ALJ VIETH: You are interested in the

protective order. Is that really the focus

of your interest? Is that where your

interest lies?

MS. MAURER: It is not just the

protective order, but who was involved, not

just Devereaux, but who was involved.

ALJ VIETH: Are there other issues?

MS. MAURER: Yes. And the other issue

is that the EMF Safety Network was involved

in a legal proceeding, Application 10-04-018,

at the time that Devereaux attempted to, by

lying to me through an e-mail, stating he

wanted access to our discussion list. And

this was an EMF Safety Network discussion


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list that we had set up, and he lied trying

to gain access to it, pretending that he was

working against smart meters.

ALJ VIETH: Where would that take you

to, to fines and penalties, or to something

else?

MS. MAURER: I am looking for

information. So I'm looking for the

information of who was involved and how did

that affect our Application 10-04-018.

ALJ VIETH: You understand I will not

be able to control the outcome of that

Application?

MS. MAURER: I understand.

ALJ VIETH: Very well. I have the

charge of this Investigation. That's all.

MS. MAURER: So I am interested in both

what Joshua Hart and TURN's interest are as

well. So the privacy issues where PG&E

claims to be interested in privacy but then

they redacted documents, gave them to the

CPUC, so all that. ]

ALJ VIETH: Well, we're going to have a

complete discussion on the protective order.

Bear with me. We'll get there.

MS. MAURER: That's where I stand.

ALJ VIETH: That helps me better

understand your interest. Then I will grant


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the request for party status with the same

proviso. You will be obliged to participate

within the scope and schedule of the assigned

Commissioner's scoping memo.

MS. MAURER: I understand.

ALJ VIETH: If you have discovery

interests, you must first approach CPSD and

PG&E and meet and confer with them and

attempt to work out your access to the

documents you're after. Okay? Thank you

very much.

MS. MAURER: Thank you.

ALJ VIETH: All right. Now, let's go

back to the last, which is CARE. And CARE --

I guess Mr. Homec is speaking for you today,

Mr. Boyd?

MR. BOYD: Well, I can probably state

interest better than he can.

ALJ VIETH: Well, we're going to need

to know, just as Mr. Shapson asked about

Mr. Homec's relationship with Mr. Hart.

We're going to have to know -- all the

parties need to know whether Mr. Homec speaks

for you and he's the one they should contact

or go to you directly. And let's work that

out. Lets go off the record and work that

out, whether Homec represents you or you

represent yourself.


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Off the record.

(Off the record)


So what's the resolution, please?

MR. HOMEC: I am going to represent

CARE, but for this proceeding, the prehearing

conference, Mike Boyd, whose the President of

CARE, will explain his two issues.

ALJ VIETH: Okay. Please, Mr. Boyd,

explain for me under Rule 1.4(b) who you

represent and your interest in the

proceeding. That's number one. And then

number two, the factual and legal contentions

you would pursue and develop if you were a

party and how they're reasonably pertinent to

the issues already presented.

MR. BOYD: Essentially, what Mr. Homec

said about Mr. Hart applies for CARE as well.

ALJ VIETH: Okay. You tell me --

MR. BOYD: CARE's interest is --

ALJ VIETH: -- what the interest is

please.

MR. BOYD: CARE is the fiscal sponsor

-- was the fiscal sponsor -- during that

fiscal year, CARE was the fiscal sponsor of

Stop Smart Meter.

ALJ VIETH: And what does that mean?

MR. BOYD: If you'll notice I attached


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a part of my 990-A IRS form.

ALJ VIETH: You did, and I don't

understand what that means.

MR. BOYD: And what that is is I have

to file a 990 form to the IRS and it has an

attachment called a Schedule A.

ALJ VIETH: Okay.

MR. BOYD: And Schedule A I have to

list other organizations that CARE is

supporting and StopSmartMeters.org was listed

for that fiscal year when this occurred.

ALJ VIETH: What does it mean, that you

support Stop Smart Meter?

MR. BOYD: That means the contributions

that went to care went to Stop Smart Meter's

educational activities.

ALJ VIETH: Can you say publicly what

the sum is?

MR. BOYD: I don't know off the top of

my head. It's probably 20,000, roughly.

ALJ VIETH: Okay. That's helpful.

MR. BOYD: We have an interest

obviously when one of our supporting

organizations is -- has had their privacy

breached. It obviously could affect CARE

indirectly. But we have a direct interest in

that CARE represents ratepayers and customers

of PG&E and has participated historically in


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investigations like this where there's --

usually it's a complaint. I remember one --

one deal with the Tracy pipeline.

ALJ VIETH: Okay. Focus on this one,

though.

MR. BOYD: Okay. Essentially --

ALJ VIETH: The staff report and the

OII.

MR. BOYD: The staff report is -- is

good, but we can't see all the information.

We would like to get a copy of PG&E's

internal report.

ALJ VIETH: So you have discovery

interests.

MR. BOYD: We have a discovery

interest.

ALJ VIETH: But what are your factual

and legal issues what are you interested in?

MR. BOYD: The legal issues are that

we're -- we're interested in making sure that

the penalty is commensurate with the

violation.

ALJ VIETH: Okay.

MR. BOYD: We would like to ensure that

the penalty is sufficient to change PG&E's

behavior. We also would -- we don't believe

penalties in themselves are -- are going to

fix it. What we need is remedial measures.


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We need to identify some kind of remedial

plan to prevent this type of thing from

occurring again and then adopt some kind of

compliance plan so that we can, you know,

regularly, maybe with CPSD, develop some way

to monitor PG&E going forward so this type of

thing never happens again. And ultimately,

that could lead to policies that apply to all

utilities for this type of thing.

ALJ VIETH: Not in this proceeding.

MR. BOYD: Not in this proceeding,

certainly.

ALJ VIETH: Okay.

MR. BOYD: But there could be a good

precedent that comes out of what remedial

measures and compliance enforcement measures

go along with the penalties. So that's

essentially what we're looking for,

preventing it.

ALJ VIETH: Okay. I will grant the

request for party status, but it's the same

proviso. You're going to be limited to the

scope.

And let me make a comment about

intervenor compensation in case there are

some of you here seeking intervenor

compensation. The Commission is not going to

award all of the costs and fees for


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duplicative effort. If you're all going to

do the same thing and incur $10,000 in costs

and fees, you should not expect that the

Commission will award $10,000 to each of you.

So this has to be focused public service.

We already have a governmental party

involved, CPSD. So at the minimum there's

going to need to be some sort of coordinated

effort to see what it is you're going to do

if the scope includes issues that CPSD has

not already fully developed. Okay? I mean,

this as a heads-up so that you're not

surprised, because I think that would be very

unfortunate.

And I gather some of you have not

participated at the Commission a lot. Maybe

for some it's the first time, maybe just a

few times. The Public Advisor can help you

if you have questions about intervenor

compensation rules, statute, and rules

implementing them. And that is the role of

the Commission's Public Advisor. Okay? Any

questions for me at this point?

Yes, Ms. Maurer?

MS. MAURER: Your Honor, is the DRA

representing CPSD this morning?

MR. SHAPSON: Oh, no just use it --

MS. MAURER: Oh, I just saw,


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"Mr. Shapson, DRA."

MR. SHAPSON: No, we just recycle.

ALJ VIETH: Mr. Shapson, why don't I

turn to you and why don't you tell us all who

you are and who you represent?

MR. SHAPSON: Mitchell Shapson and

Mr. Christopher Clay are the attorneys for

CPSD on this investigation. In terms of the

service list, I'm not sure which one of us is

listed as the party and which one is on state

service. I don't think it really matters to

either one of us.

ALJ VIETH: Okay. Which should be

lead?

MR. SHAPSON: Let's make Chris lead.

ALJ VIETH: Off the record.

(Off the record)


As necessary, the list will be

corrected to show Mr. Clay as lead.

MR. SHAPSON: Thank you, and I will be

listed as state service I believe. Here with

us is Linda Wood, the supervisor from CPSD

who is overseeing this case.

ALJ VIETH: Thank you. And I'll have

some questions for CPSD in due course.

MR. SHAPSON: Thank you.

ALJ VIETH: All right.


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Off the record a moment.

(Off the record)

ALJ VIETH: Okay. Back on the record.

Now I want to turn to the motion for

-- by PG&E for protective order. And those

of you who have party status may all

participate in the discussion. Okay? We've

cleared up who is or who is not a party. If

you're a party, you may participate.

I do not know whether I'm going to

rule on that motion today. I may not for

this reason. I know that both TURN and EMF

Safety Network tendered responses or protests

variously titled to the docket office, and

those were not filed because only parties may

file pleadings. So now you understand better

why we had to get the party status situation

sorted out. I may simply let you file those,

let PG&E file a response, let others file a

response who have not. But I want to get a

little more information first.

And so, Mr. Shapson, let me turn to

you. I'd like to understand how we got from

OII and a sealed staff report to PG&E motion

for a protective order with a redacted staff

report attached, just the series of events

that occurred.

Off the record.


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(Off the record)


The OII directs PG&E to file a

motion. We got a motion. We got a staff

report that's partially redacted. DRA did

not respond to my knowledge -- I misspeak.

CPSD did not respond to my knowledge to the

protective order. Is CPSD in accord with

PG&E? Did PG&E and CPSD meet and confer and

agree that this is what would be attached to

the PG&E motion? I don't know what CPSD's

view is, and I don't know how we got to the

place where we are right now.

So off the record meet and confer if

you need to. Let me know when you're ready

to speak, and we'll go back on the record.

(Off the record)

ALJ VIETH: We'll be back on the

record.

Mr. Shapson?

MR. SHAPSON: Yes, your Honor. CPSD

has investigative authority and is, as a

matter of statute, privy to a lot of

confidential information from the utilities

that are regulated by this Commission.

As a result of that, the normal

course of an investigation -- any

investigation, keeping in mind that some of


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that confidential information has to do with

contract identifiers or purchase agreements

or prices fro energy when there's a

competitive market out there. And statute

requires us to keep that information

confidential. We're duty bound by the

legislature.

As a result of that, during the

normal course of any investigation, whether

it's resource adequacy or something like this

kind of a case, the normal procedure is to do

the report, base the Order Instituting the

Investigation on the report. The Commission

votes out the order, but the report is kept

confidential until the utility has an

opportunity to make a motion to protect the

information that it considers confidential in

that report. That's pretty much, as I

understand it, what happens in any

investigation, whether it's energy, water, or

telecommunications or transportation.

So nothing really unusual happened

procedurally in this case. In terms of the

redacted information, my understanding is

that PG&E is going to be addressing that with

the -- with the parties. Generally speaking,

identity of IOU employees is kept

confidential. If a particular name needs to


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come out because of the factual or legal

analysis that is required in that particular

proceeding, then that's something that

intervenors or CPSD can work out with the

IOU. So based on that, we followed the

procedures here and did not oppose the

motion.

ALJ VIETH: I have one more question

for you. Is it -- we'll get into the motion

in greater detail, and we'll get into

specific redactions at least in a

descriptive, discussional way. But is CPSD's

position that names of CPSD staff are

properly redacted from the report?

MR. SHAPSON: Well, as I said --

ALJ VIETH: In this report?

MR. SHAPSON: -- in the general course,

employees' names remain confidential. If a

particular name needs to come out because of

their particular involvement, that's

something that can be worked out either by

way of a discovery motion by parties or an

agreement with PG&E.

ALJ VIETH: Okay. But when you're

speaking of employees, are you speaking of

both PG&E and CPSD? I'm interested in your

view in the redaction of the names of other

CPSD employees.


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MR. SHAPSON: Oh, I was not aware of --

I don't think there's any Commission

employees, whether they're CPSD or other

wise, redacted from the material.

ALJ VIETH: Okay. We'll get to that.

MR. SHAPSON: If there are, I'll

address that.

ALJ VIETH: Perhaps I misread the

report, but I thought that there were. Okay.

Let's get into this then. At least if we

have a general discussion, it may help us see

where to go forward.

Let me make perfectly clear that to

the extent names or other information have

been redacted by PG&E, they may not be

disclosed in this hearing room without my

order. Okay? We don't mention them. It

doesn't mean they're shielded from public

view for all time. But if for example, CPSD

has a unredacted report, as I expect it does,

you may not read the redacted portion today

without an order that it be released. I just

want to be very clear about that. The same

goes for PG&E. And if there is another party

that has obtained a copy of the unredacted

report, same rule. Okay? This is just the

way we deal with this carefully and move

forward carefully.


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Okay. I looked at the staff report.

I looked at the redacted version attached to

the PG&E motion quickly. And it appeared to

me that there are several documents,

Attachments 1 and 11 in particular, that

consist of some internal CPUC e-mail or

documents submitted by CPSD to an entity

other than PG&E, and that the names of the

PUC staff are redacted. And I'd like to know

if CPSD has a view of that today. If you

need to take a look at it, let me know. If

your request is you'd like to brief it, let

me know.

Go off the record.

(Off the record)


Yes, Mr. Shapson.

MR. SHAPSON: For the most part, CPSD

does not believe that the names of the CPSD

employees need to be protected as

confidential. We'd like to take a day or

two, go through, make sure that there's

nothing we're missing with regard to

Attachment 1 and 11, and communicate to the

service list a finalization of that

statement.

ALJ VIETH: And to me.

MR. SHAPSON: Yes, of course.


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Absolutely.

ALJ VIETH: Why don't you send -- I'll

accept that. Rather than requiring you to

file a response to the PG&E motion, please

send an e-mail to me and copy the entire

service list.

MR. SHAPSON: Thank you, your Honor.

ALJ VIETH: Okay. And while I thought

I saw such redactions in Attachments 1 and

11, please carefully look at the entire

report and see if there are other such

redactions. And focus exclusively on the

names of PUC employees or perhaps lengthier

text if it's PUC generated. If it concerns

PG&E, you're going to need too meet and

confer with PG&E.


ALJ VIETH: You're welcome. Is there

-- I think you -- it's pretty clear what I've

asked CPSD to do. Are there any of you who

want to weigh in and argue or comment at this

time about your view about the legality and

propriety of redacting CPSD or other PUC

employee names? If so, I'll allow brief

remarks now.

MR. BOYD: I had a question first.

ALJ VIETH: Mr. Boyd, yes.

MR. BOYD: I heard mention of redaction


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and protection of CPUC employees. I heard

about PG&E employees. What about customers

of PG&E?

ALJ VIETH: That's not what I'm talking

about.

MR. BOYD: No, I'm asking. Is that the

same -- do the rules of the PUC regarding

investigations --

ALJ VIETH: Mr. Boyd, we haven't got

there yet.

MR. BOYD: Okay. That's fine.

ALJ VIETH: We have to take this very

step-wise. Other wise we'll get confused.

MR. BOYD: That's fine. I'll address

the issue, which is as far as CPSD or some

other CPUC employees names be redacted, it

seems kind of the opposite of what the

purpose of being a public servant is. In my

mind, we have a right to know what the

public's business is and whose doing the

public's business. So for my mind, unless

there's some overriding consideration that

would require that be protected -- I know

that in the case of police officers that

they've been forced to disclose their names

even though they may have killed someone in a

police shooting.

Why would a -- why would a -- a


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civil matter like this, where we're talking

about what's clearly a civil matter -- why

would there be any -- why would there be any

justification for redacting that information?

ALJ VIETH: Anyone else wish to weigh

in?

Mr. Hart?

MR. HART: Your Honor, at issue in this

case is to what extent Devereaux acted alone,

as PG&E initially claimed in reports to the

media or whether this was a strategy of

PG&E's stop executives so --

ALJ VIETH: Right. But Mr. Hart, right

now we're talking about redacting the names

of PUC staff. So if you could focus on that,

it would help me a lot.

MR. HART: So to the extent that that

one man, Willie Devereaux's, spying was known

about and discussed with staff at the Public

Utilities Commission, that is of overriding

public interest in determining the remedies

for this case and determining whether in fact

this was an isolated incident of one man act

willing alone or whether this was something

that was known about for months at a time and

where action could have been taken but

wasn't.

That's -- that's simply identifying


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staff who were in communication that would

show up in these e-mails that we're

discussing is of overriding interest to the

public and our community groups.

ALJ VIETH: Okay. Thank you. And

again, we're just focusing on the names of

Commission staff at this moment.

Thank you, Ms. Maurer.

MS. MAURER: Yes, CPST -- CPSD, they

said they didn't know of any CPUC names. And

I have a redacted document here where it's

redacted and it says, "@CPUC," so I just want

to --

ALJ VIETH: We took a little break.

MS. MAURER: Yes.

ALJ VIETH: And they discovered they

were mistaken and they're going to look into

that and take some further steps.

MS. MAURER: Okay. Okay.

ALJ VIETH: So that's not an issue any

longer.

MS. MAURER: Because the EMF Safety

Network is listed in on some of these e-mails

that are associated with the CPUC e-mails.

ALJ VIETH: But we're just looking at

CPSD and other Commission staff names in

these e-mails.

Mr. Shapson?


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MR. SHAPSON: I'd just like to remind

the Court and parties that the redactions

were done by PG&E and not CPSD.

ALJ VIETH: Exactly. And that's

exactly why I asked what the steps were to

get to the redacted report and whether CPSD

intended to agree or object or weigh in at

all. And we've got past that now.



MS. MAURER: Your Honor, just one

question.

ALJ VIETH: Yes, Ms. Maurer.

MS. MAURER: Why are we working with

documents that are redacted by PG&E and not

CPSD? Why do we have documents -- I mean, is

the motion by PG&E for protective order --

does this include redactions that are done by

the CPSD?

ALJ VIETH: The motion by PG&E asks

that this report prepared by the Commission

staff be redacted in the way PG&E has

requested. And the fact that PG&E requests

it doesn't mean that PG&E gets it. But I

have to be very careful and take the types of

redactions one at a time and get discussion

about them and figure out what the

sensitivities are and whose interested. When


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the report came to me, it was sealed. A

portion of the report is now attached to the

PG&E motion.

MR. VALLEJO: Your Honor, if I may?

ALJ VIETH: Mr. Vallejo?

MR. VALLEJO: Thank you, your Honor.

Alejandro Vallejo on behalf of PG&E. I

wanted to maybe clarify the steps that PG&E

took.


MR. VALLEJO: It's in our motion, but

it might help elucidate our discussions.

ALJ VIETH: Thank you very much.

MR. VALLEJO: And really, the purpose

of the redactions and -- and the intent of

PG&E was to be circumscribed and limited in

our redactions. We redacted what we thought

were individuals' names that had not been

previously disclosed in media reports. So

names that were already in the public sphere,

we did not redact because we felt those were

already publicly available.

Other names, such as CPSD staff,

such as certain individual customers were

also redacted from a privacy perspective. So

again, we limited our redactions to

individuals' names that had not been

previously disclosed in the -- in several


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media articles that resulted from this

incident. I just wanted to give the Court a

little bit of the background on it.


Okay. Again, based on my own quick

review, I'm just going to highlight a few

things where I think some additional

consideration may be required. My

highlighting these things doesn't mean that I

am not concerned about anything else. I just

gave it a once-over to see, based on my

experience with requests for redaction,

requests to essentially seal portions of a

document, whether there was a coherence with

my own recollection of the law. I did no

additional research.

I should say to all of you that I

take very, very seriously requests to seal

documents from public view. I do believe

that there are things that should not be

released at the risk of harm to the public,

to infrastructure is too great. But I take

very seriously my signature on a ruling that

orders something be excluded. And so I'm

very careful with this. I want to see legal

rationale and, in some instances,

declarations with those who have factual

knowledge as to the facts averred. That's


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why this may seem laborious to you, but I

take it very seriously and we're going to go

very, very carefully.

I am not going to rule today, but

I'm hoping that by this general discussion,

we won't have additional pleadings that are

just running past one another, that they may

be better focused and that you may be able to

meet and confer and reach some accommodations

that are objectively lawful. Okay?

So another thing I saw, and this is

for you, Mr. Vallejo, in some places it

seemed to me that PG&E -- well, I think PG&E

has almost always redacted names of officers.

But in some places, I saw titles redacted and

not others. And that seemed to me to be an

inconsistency. There may be a logic, but it

wasn't clear to me. There's specifically a

section of text where names and titles are

redacted. But elsewhere, there are charts

and so forth where names are redacted but not

titles. So I think you ought to look at that

again.

MR. VALLEJO: Okay. Certainly will.

Would your Honor like me to address any of

that now or just hold off?

ALJ VIETH: If you know exactly what

I'm talking about and you have an argument


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that it should be -- that practice should be

maintained, why don't you let us here it?

MR. VALLEJO: And I'll caveat this with

saying that I'm -- I will go back and take a

look and address it more fully as your Honor

has requested. My -- my initial thought is

that when we redacted individuals' titles was

when they were tied to specific activities.

So there I think are portions in the CPSD

report that speak generally to the corporate

structure but don't specifically tie actions

or e-mails or incidents to that general

corporate structure.

ALJ VIETH: Okay. Mr. Vallejo, take

another look at the report and the

attachments, and you can let me know by

e-mail if you're changing your position --

and of course a copy to the service list.

Before we leave, we'll have a date for all of

those changes of view to be communicated, and

then we'll see what needs to -- we'll set a

date for additional briefing as necessary.

MR. VALLEJO: Very well, your Honor.

ALJ VIETH: Attachment 2, I know the

allegation is that these are personnel

records. The entire document is redacted. I

think you need to make a better case for that

and declarations. It isn't clear to me that


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this is not an internal report that could be

something other or at least part other than

personnel reports. And particularly I'll say

hypothetically, PG&E's factual assessment is

the same as CPSD's. I wonder at the need to

exclude all of that.

MR. VALLEJO: We'll take a look at that

as well, your Honor.


Attachment 5. I don't even remember

what Attachment 5 is. Let me check myself.

Something that was fully redacted. Same sort

of request. Should it be in the entirety?

I'll tell you that my own view with

boilerplate contracts, for example, is that

there may be provisions in a certain sort of

case, procurement case, where some

information should not be publicly viewed.

But the title, some of the boilerplate

provisions -- my own view, absent specific

authority that says seal it all, is that

you've got to isolate what really is

critical. Okay. That was my own quick

overview.

Now, I know there are people who

want to make arguments that certain

information was redacted that shouldn't be or

certain information wasn't redacted that


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should be or perhaps there should have been

some meet and confer. And I'll hear that

first.

Mr. Long?

MR. LONG: Yes, your Honor. I would

like to first ask that TURN's tendered

response be filed -- be allowed to be filed

with the docket office. ]

ALJ VIETH: Granted.

MR. LONG: Thank you.

ALJ VIETH: While we are on that, EMF

Safety Network likewise tendered a protest of

motion, and I will ask the docket office to

file that.

MS. MAURER: Thank you. So both will

be filed.

MR. LONG: Your Honor, at the

appropriate time I would like to speak to

PG&E's motion.

ALJ VIETH: Okay. Just a placeholder,

we are going to come back and talk about a

date when both PG&E and CPSD will report back

to me on their re-look at what's redacted and

assessment, if we can't narrow that. And

then we will have a smaller group of issues

to continue to talk about. Okay.

Placeholder on that date.

Mr. Long, yes, you may address


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PG&E's motion.

MR. LONG: I would like to begin by

discussing the general principle regarding

privacy.

PG&E correctly cites the individual

right of privacy in the California

Constitution, but they omit another equally

important Constitutional provision, which is

that the public's right of access to

information concerning the public's business.

This was added to the California Constitution

a few years ago and perhaps PG&E did not know

about it. Otherwise I would have expected

them to cite it.

And I'm going to be citing

occasionally to a recent Court of Appeal

Decision. The Decision is Marken versus

Santa Monica Malibu Unified School District.

And the citation is 202 Cal App Fourth 1250.

ALJ VIETH: Off the record.

(Off the record)


MR. LONG: This is a Decision that

discusses the general principles governing

privacy and points out that the right of

privacy needs to be balanced against this

countervailing public right of access in the

California Constitution and also points out


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the very important principles that are served

by openness in government.

So I commend this Decision to the

Commission and the parties.

One exemption -- of course, the

general principle is that public records

should be made public. That is the general

principle. However, there are exemptions set

forth in the law, and one of those exemptions

is cited by PG&E for personnel, medical or

similar files, the disclosure of which would

constitute an unwarranted invasion of

personal privacy.

This Decision makes clear that

exemption is to be construed narrowly. It is

not to be given a broad reading. And this

Decision interprets it in a very interesting

case, which will get to in a moment, in a

very interesting way.

But the concerns that TURN has with

PG&E's motion, and I will caveat that by

pointing out that not having reviewed the

unredacted version, we don't know if there

are other -- we don't have a full sense of

the document, and therefore there may be

other concerns that we are not able to

articulate at this point. But at least for

now we have two broad concerns. The first is


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the redaction of the names of other PG&E

employees who reviewed e-mails that were sent

by Mr. Devereaux and any of those employees

who had the ability to stop what

Mr. Devereaux was doing we believe are very

important to include in the public record.

On the face of the CPSD report it

appears that those individuals, like

Mr. Devereaux, violated the law. They should

not have allowed Mr. Devereaux to engage in

the deceit that he did to the effect of

infiltrating these groups in a deceitful

manner.

The CPSD report makes a very good

case that these individuals were aware of

what Mr. Devereaux was doing. They received

e-mails, reports from him about what was

going on. And therefore, there is a good

case that they were complicitous in what he

did. As I said, they had the opportunity to

stop his actions, his improper actions.

Now, I return to this Decision I was

just citing.

This Decision speaks to this precise

issue. It is when you have an allegation of

misconduct by individuals and a claim that

their identities should be kept confidential,

what is the right thing to do? In this case


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the situation was a school teacher was

alleged to have engaged in sexual harassment

of a 13-year-old student. There was a report

done and allegations were made and they were

deemed by the school district to be

allegations that were likely to be correct.

There was no final determination, but they

were deemed likely to be correct.

In this instance -- there was a

request to have the name of the teacher

admitted -- the report allowed to be

disclosed to the public. And the Court

determined that that report should be

disclosed to the public. And the standard

they use is the one that should be used here.

And let me just get to that standard in a

moment here.

The standard is where there is

reasonable cause to believe the complaint to

be well founded, the right of public access

to related public records exists. And that's

exactly what I think we have here, your

Honor. We have a situation where there's a

well founded allegation that officials at

PG&E who had the ability to stop what

Mr. Devereaux was doing, to stop his deceit,

did not do that. It is a well founded

allegation. And based on that, your Honor,


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we think their names should be part of the

public record. So I would strongly urge all

to review this Decision. I think it is right

on point.

So that's one concern we have is the

names of those who had the ability to stop

Mr. Devereaux's conduct.

And the second that we addressed in

our response was the internal investigation

report which has been completely removed from

the CPSD report. Again, I think that is

based on the Public Records Act exemption for

personnel files, et cetera. As I have

already said, that exemption is to be

construed narrowly. But this report is

potentially extremely relevant here, and not

reviewing it, we are not in a position to see

what privacy interest is being protected.

But it sure seems to have the opportunity to

protect an interest of PG&E's that should not

be shielded from public scrutiny, and that is

whether PG&E did a full report or whether it

did a report focused only on the conduct of

Mr. Devereaux and did not examine the conduct

of potentially or apparently culpable conduct

of officers and others who had the ability to

stop what Mr. Devereaux was doing.

And that would be extremely


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important. The only way to know that is to

see the report in order to see the full scope

of the issues identified that were addressed

in the investigative report. For that reason

I think the public has an extremely strong

interest in seeing the entirety of that

report.

Those are the two issues we wanted

to focus on.

As I mentioned, we would like to

reserve the opportunity at some other time

when we have an opportunity to review the

full report to potentially raise other issues

that may come to mind as we have that

opportunity.

ALJ VIETH: Thank you, Mr. Long.

As I stated earlier, I take this

motion for protective order very seriously,

as I do take any request to seal documents.

And I'm not going to rush in to grant or deny

the motion.

Mr. Vallejo, would you like to

respond to Mr. Long, or would you like to

hear the concerns of others and then respond

to all later? What is your preference?

MR. VALLEJO: If I could, your Honor, I

would just like to respond to a couple of

points.


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ALJ VIETH: You certainly may.

You understand, all of you, that I'm

not ruling today. So lengthy arguments will

not cause your case to prevail.

Thank you.

MR. VALLEJO: Understood, your Honor.

I promise to keep it brief.

I just wanted to raise two issues

with regard to Mr. Long's contentions.

The first is that PG&E is the only

respondent here. The individuals to whom the

e-mails purportedly went are not individual

respondents.

I suspect, and I haven't had a

chance to review the case, but I suspect that

the Santa Monica case was a disciplinary

action against an individual, an individual

teacher. So I think that is a substantive

and material difference that may distinguish

that case. But, of course, we can address

that later.

The second issue on the

investigative report that PG&E put together,

and this I just want to underscore, it is in

our motion but I do want to underscore it for

your Honor, it is our position that we don't

have the right to waive an ex employee's

right to privacy. If we are ordered to do so


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by the adjudicatory body, of course, we will

do so. But we feel that it is the Company's

duty to protect current and former employees'

rights of privacy under the Constitution.

Otherwise, we would be derelict in our duties

in potentially waiving some individual's

right to privacy that we don't have the right

to do.

And then the last point I wanted to

make is that we are open and we remain open

to the types of measures that your Honor has

alluded to, like nondisclosure agreements,

where the parties can take a look at the

different documents and certainly that the

CPUC and CPSD has full access to the entire

record.

Thank you, your Honor.

ALJ VIETH: Yes, Mr. Boyd. And

briefly, please.

MR. BOYD: Yes, your Honor.


MR. BOYD: First, counsel for PG&E made

an incorrect statement when they said that

they redacted former employees' names.

Mr. Devereaux's name is all over these

documents and he is a former employee, is my

understanding. So that speaks for itself.

My concern with the motion is


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twofold: One, I don't think it complies with

the requirements of the California Public

Records Act, and that doesn't specifically

list what exemptions allow it to protect

information they are seeking to protect under

the Public Records Act. The only exemption

that I'm aware of that might apply is law

enforcement investigation. And from what I'm

hearing from the law enforcement entity

involved, that's not something they're

seeking. It is something PG&E is seeking.

The other issue I'm concerned about

is the implication that somehow there's

contractual information or procurement

information or anything of that sort. I have

participated in confidentiality proceedings

for a while. I helped develop the matrix

developed in D 06-06-066. And whatever is

protected, it has to be on that matrix, is my

understanding, for it to be subject to that

protection, unless of course you can show an

exemption under the Records Act or some other

statutory authority.

So, essentially, what I'm saying is

just -- it is a general claim of protection.

It doesn't give me any specific statutory

authority to protect information they are

seeking.


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ALJ VIETH: What would help me is to

know if CARE is asserting a particular right

to see something apart from a disclosure

agreement, if you are concerned about

specific redactions.

MR. BOYD: I am concerned about

redacting any of the executives or other

employees that participated in this

conspiracy to violate our rights to privacy.

ALJ VIETH: Mr. Hart.

MR. HART: Your Honor --

ALJ VIETH: So now you have sort of

carte blanche to talk about your concerns

with the motion and redaction of any type of

information. Okay.

MR. HART: Your Honor, we seek full

unredacted version of the investigation being

put forward, not only the CPSD investigation,

but the PG&E internal investigation.

I want to note that this initial

investigation was indeed released to the San

Jose Mercury News and to the San Francisco

Chronicle along with about 900 to a thousand

pages of these heavily redacted e-mails by

PG&E. In other words, the redactions were

carried out by PG&E specifically redacting

much of their own e-mails and specifically

their own identities but leaving the


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identities and the e-mails of those private

correspondences that were spied upon,

releasing those publicly.

So we will argue, we would support

what Mr. Long has asserted, and we would

argue that public figures such as regulated

utility executives have a reasonable

expectation that their activities,

particularly in a case like this where there

is an infiltration and identity falsification

in order to gain access to a private outside

group, that the work and that their

violations of the law are subject to public

knowledge.

No one is asking for the private

home records of the -- private home addresses

of the executives, simply the identities of

who knew what, what they knew, when they knew

it.

In terms of the release of these

identities, it is in the public interest, as

Mr. Long indicated, to ensure that this kind

of thing never happens again, that Pacific

Gas and Electric and other utilities with the

responsibility to serve the public conduct

their business openly, transparently and

honestly. And by redacting their identities,

it would make that significantly more likely


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to happen again, that future executives may

feel like they can carry out such clandestine

privacy invading activities and be shielded

from public knowledge about their identities.

So PG&E in their protective order

request raises this issue that their

employees may be subject to threats to their

safety if their identity is released to the

public. However, they give no public

substantiation or backing of that assertion.

And in reality, many PG&E employees -- many

PG&E customers have suffered direct impacts

to their safety, including at le

Documents

I1204010 Transcript PHC 1