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Kentucky Utility Regulators Sue to Limit Public Records Access

Ryan Van Velzer

Amid last year’s fight over net-metering legislation, a lobbyist working on behalf of utilities asked the regulatory agency that oversees utilities to weigh-in with a letter to lawmakers.

Gwen Pinson, the executive director of the Kentucky Public Service Commission, wrote back two hours later:

“Jason, The Commissioners and I are going to discuss your request this afternoon. So I will be in touch thereafter,” wrote Pinson.

The Public Service Commission sent a letter to lawmakers a week later.

That email was among 282 pages of documents that came to light after a public records request from Kentuckians for the Commonwealth, a left-leaning advocacy nonprofit. KFTC is highlighting the email as an example of the types of “cozy” relationships utility regulators have with lobbyists.

And in the wake of the release, the Public Service Commission is suing KFTC to set legal precedent that keeps certain communications — like those between executive agencies and lawmakers — confidential before a bill has been signed into law.

Both groups say it’s important for lawmakers to be able to have frank conversations with experts, especially when it’s on a technical subject like energy policy. Their disagreement is over when those conversations should be subject to public disclosure.

In a complaint filed in November, PSC attorneys argue that communications over legislation are exempt until a bill becomes law. Spokesman Andrew Melnykovch says the agency is pursuing litigation to get a precedent for future cases.

“If government is going to operate effectively in the public interest, there has to be the ability for people within government to communicate frankly with each other in the process of making decisions,” Melnykovch said.

In an answer to the complaint, Kentuckians for the Commonwealth argues the PSC’s claims are overly broad. An advocate speaking on behalf of the group said they are now fighting for transparency in government. 

“This is about finding out how our government agencies work so we can get good governance in the state of Kentucky and make sure our government serves all of us,” Ezra Dike said.

Net Metering And Records

In the first weeks of the 2019 legislative session, speculation abounded about the future of net metering — the credit rooftop solar customers receive for the energy they feed back into the grid.

The second week of February, Sen. Brandon Smith of Hazard introduced Senate Bill 100That bill became law and today it gives Kentucky’s Public Service Commission authority to set net metering rates for each individual utility.

Before the bill was introduced, on February 6, Lobbyist Jason Bentley sent an email to the PSC. He asked regulators to write a letter to lawmakers explaining why the PSC is the best agency to set rates for net metering. Bentley, at the time, was working as a lobbyist for utilities including Duke Energy and Louisville Gas & Electric.

A week later on February 14, the PSC sent letters to lawmakers

Speaking on behalf of the PSC last week, Melnykovych said when utility regulators received Bentley’s email they had already decided it was necessary to send a letter to lawmakers, though he didn’t know what date the letter was drafted. 

“I mean the issues that he raises are obvious. I mean if you are going to set rates, who do you want to set rates? The people who set rates,” he said.

In a blog on the KFTC website, the advocacy group cites Bentley’s email and others as an example of “a cozy relationship between utilities and their regulators — a relationship that seems to have accelerated the passage of anti-rooftop solar bill SB 100.”

Bentley was one of several lobbyists from both sides of the issue who emailed the PSC; others included Jason Baird, who was representing the Kentucky Solar Industries Association. Baird did not explicitly ask for a letter to lawmakers, though he does ask for the commission’s opinion on bill language. 

In an emailed statement, Bentley said it’s common for government agencies to weigh in on public policy. And in the case of SB 100, he said all parties had their voices heard.

“We felt it appropriate for lawmakers to hear the perspective of the Public Service Commission,” Bentley said.

Changing Kentucky Open Records Laws

After hearing about the letter from the PSC to lawmakers, Kentuckians for the Commonwealth wanted to know what was happening behind the scenes. So in late February they requested Public Service Commission communications in regards to both SB 100 and its companion bill HB 227.

Initially, the Public Service Commission denied both requests. They cited one of the most commonly used exceptions under state law that prevents the disclosure of so-called “preliminary” records.  Preliminary records can include drafts, notes, correspondence, recommendations and opinions given ahead of a “final action of a public agency.”

The Attorney General’s Office then overruled the Public Service Commission, and the PSC turned over the majority of the records, including Bentley’s email exchange with Pinson. 

But that wasn’t the end of it. The PSC is now suing Kentuckians for the Commonwealth to prevent similar releases in the future.

At the root of the debate, is what constitutes a “final action.”

In one of the complaints, the PSC argues that all communications about SB 100 are exempt from disclosure “at least until SB 100 was signed into law.”

Dike with Kentuckians for the Commonwealth called the argument “hogwash.” 

“Their final decision was made when they made a recommendation,” Dike said. “Anything that led to that decision of theirs, that final action of theirs, isn’t protected anymore.”

He said these public records are important to understanding how decisions are made in government, and without them it would be harder to know if there are institutional biases that favor one group over another. 

Melnykovych with the PSC said the disclosures could limit frank discussions between experts and lawmakers.

“If somebody asks me for my opinion about something, I’m going to be a lot less blunt and frank with them if I think that opinion is not going to be kept in confidence,” he said.

The lawsuits are currently pending in Franklin Circuit Court. 

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