Public Service Commission to be sued over withheld information

Dec 20, 2013

The state’s Public Service Commission (PSC) is coming under fire yet again with claims that the body’s proceedings lack transparency.

A group of elected officials, ratepayers, and environmental groups announced Thursday that they’re filing a lawsuit in state Supreme Court against the PSC in an attempt to gain access to documents relating to the future of two power plants in upstate New York.

The PSC is tasked with reviewing proposals for the future of the Dunkirk and Cayuga coal-fired power plants.

But, according to the plaintiffs in the lawsuit, they’re shutting the public out of the discussion.

Chris Amato is the attorney for environmental organization Earthjustice, one of the groups involved in filing the suit.

He says the PSC is failing to protect the public interest.

“It’s very secretive, the commission and the DPS staff and the utilities are constantly meeting and communicating and exchanging documents and the public, even though we are parties to this proceeding, are being kept out of that loop,” Amato said.

The lawsuit will be filed against the PSC Friday. In a written response, PSC officials say they are unable to comment on potential litigation.

But, on Wednesday a letter was sent to Earthjustice notifying them that their request for documents was being treated as a Freedom of Information Law request. In the letter PSC Records Access Officer, Donna Giliberto says it could take months to track down the documents.

Your request seeks 12 categories of records. Based on a preliminary assessment, the amount of potentially responsive records appears to be voluminous, and the records must be gathered from at least 25 staff members in offices across the State.  After collecting the records, each record must be reviewed as to its responsiveness and to determine whether it contains any information that is exempt from disclosure under POL § 87(2).  Notably, the records you seek are likely to consist of internal analyses of this agency and relate to an ongoing proceeding regarding sensitive infrastructure issues.  Additionally, Cayuga and NYSEG representatives may need to be contacted regarding disclosure of documents for which protection under FOIL has been sought under POL §§ 87(2)(d) and 89(5).  As such, we estimate that it will take several months to collect and review the records you seek, and most of the documents may be exempt from disclosure in whole or in part.  We will provide any disclosable to you as they become available.  We will update you with the status of your request by April 18, 2014.

The lawsuit comes just days after Gov. Andrew Cuomo announced a $150 million agreement to repower the Dunkirk station with natural gas.

The deal is still subject to PSC approval, but the commission has not yet seen the details. Amato says the announcement effectively short-circuited the PSC process and is symptomatic of the type of backroom dealing that prompted the lawsuit.