Report 2016-104 Recommendation 11 Responses

Report 2016-104: California Public Utilities Commission: It Should Reform Its Rules to Increase Transparency and Accountability, and Its Contracting Practices Do Not Align With Requirements or Best Practices (Release Date: September 2016)

Recommendation #11 To: Public Utilities Commission

The CPUC should develop and follow procedures to regularly track and review California Public Records Act requests it has not fully responded to and determine whether it can provide information.

Annual Follow-Up Agency Response From October 2018

"Since January 2018, the PRA team has replaced its full time attorney and added two paralegals to the staff. The new attorney has largely taken over the duties of the prior attorney, including the processing of new requests and subpoenas, communicating with staff to locate documents and determine responsiveness, processing e-mail document searches, interfacing with outside requestors and counsel, and administrative duties, such as assigning work to other attorneys.

The two paralegals maintain all files related to PRA requests and subpoenas and track all related deadlines, including emailing and calling attorneys to insure that deadlines are being met. The paralegals contact staff for updates with regards to both new and legacy requests, prepare templates and reports, and provide feedback about how to streamline processes. They also follow up via email with staff to facilitate document collection. Under the direction of the assigned attorney the paralegals may contact requesters to request clarifying information regarding overly broad or unclear requests. Paralegals also process resolutions for the release of investigatory records. Since the last update to the State Auditor in September 2017, the PRA team has reduced the number of open legacy/LIR requests by over 50%: from 47 to 22 (including 4 closed by outside counsel). Consequently, where in 2017 there was a net backlog of 56 requests, this year the team has been able to close 10 more requests than have been opened, despite being on pace to have 34 more requests opened this year over last. The median number of days needed to close has held steady at 10 days as well, signifying that we are making strides to close requests in a timely manner."

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From November 2017

As we explained in the May 2017 phone call with the State Auditor, we have a skeleton administrative staff available to monitor attorneys' work on assigned records requests. Legal Division's PRA team has been without administrative assistance since December 2016. Prior to December, two legal analysts (i.e. paralegals) were assigned to the PRA team. Both of those positions have been vacant since December 2016, despite efforts to fill them. One of the individuals became an attorney, but has only able to work on PRA requests on a part-time basis, devoting most of that time to the substantive work of responding to PRA requests. Because of the large PRA workload, she has limited time to remind other attorneys to complete their legacy requests.

Despite these staffing limitations, we established a procedures document regarding legacy requests. Pursuant to that procedure, the above-mentioned attorney (because we have no legal analysts) requests a status report from assigned in-house attorneys every two weeks. If assigned attorneys fail to provide an update, she informs the supervising AGC (which has not occurred since development of the protocol). See procedures document and examples of records showing attorneys contacted, attachments 11-A and 11-B. We have also requested our outside counsel to provide a status report of open legacy requests every two weeks. See, e.g., 9/1/17 status report and 9/15/17 status report, attachments 11-C and 11-D.

In addition, per the State Auditor's specific request in the May 2017 phone call, we tracked the monthly closures of legacy requests so that the State Auditor can see what has been closed over time and what remains open. See list of open/closed legacy PRA requests, attachment 11-E. Monitoring of PRA requests submitted after May 2016 occurs through NextRequest, as described in an earlier response above.

California State Auditor's Assessment of Annual Follow-Up Status: Partially Implemented

The CPUC repeats the response to this recommendation that it submitted as part of its one-year response. Accordingly, our assessment remains unchanged. Specifically, the procedures document that the CPUC refers to appears to have been created recently. It suggests that the procedures have only been followed twice so far. However, the procedures do not address elements we believe are important, such as when and how to make the determination that a partial or complete response to a request is ready.

1-Year Agency Response

"As we explained in the May 2017 phone call with the State Auditor, we have a skeleton administrative staff available to monitor attorneys' work on assigned records requests. Legal Division's PRA team has been without administrative assistance since December 2016. Prior to December, two legal analysts (i.e. paralegals) were assigned to the PRA team. Both of those positions have been vacant since December 2016, despite efforts to fill them. One of the individuals became an attorney, but has only able to work on PRA requests on a part-time basis, devoting most of that time to the substantive work of responding to PRA requests. Because of the large PRA workload, she has limited time to remind other attorneys to complete their legacy requests.

Despite these staffing limitations, we established a procedures document regarding legacy requests. Pursuant to that procedure, the above-mentioned attorney (because we have no legal analysts) requests a status report from assigned in-house attorneys every two weeks. If assigned attorneys fail to provide an update, she informs the supervising AGC (which has not occurred since development of the protocol). See procedures document and examples of records showing attorneys contacted, attachments 11-A and 11-B. We have also requested our outside counsel to provide a status report of open legacy requests every two weeks. See, e.g., 9/1/17 status report and 9/15/17 status report, attachments 11-C and 11-D.

In addition, per the State Auditor's specific request in the May 2017 phone call, we tracked the monthly closures of legacy requests so that the State Auditor can see what has been closed over time and what remains open. See list of open/closed legacy PRA requests, attachment 11-E. Monitoring of PRA requests submitted after May 2016 occurs through NextRequest, as described in an earlier response above.

"

California State Auditor's Assessment of 1-Year Status: Partially Implemented

The procedures document that the CPUC refers to appears to have been created recently. It suggests that the procedures have only been followed twice so far. However, the procedures do not address elements we believe are important, such as when and how to make the determination that a partial or complete response to a request is ready.

6-Month Agency Response

Legal Division's Public Records Office opened a new online portal called "NextRequest" (https://cpuc.nextrequest.com/) to receive and track all incoming records request.Requesters submit online requests and receive a private and secure portal to track their requests (see page 1 of attached Appendix for screenshots of the live portal);An immediate e-mail is issued to the Public Records Office containing a tracking number and indicating the 10-day, statutorily-based due date ;Automated daily reminders of "Overdue and Due Soon" requests are e-mailed to assigned staff with tracking numbers, past-due production dates, and future due dates Automated daily "Notification Digests" are e-mailed to the Public Records Office, and Internally available color-coded tracking flags indicate to staff whether a records request is closed (black), open (blue), due soon (yellow), or overdue (red) The Public Records Office team also utilizes NextRequest to generate real-time status reports containing critical oversight data. NextRequest's reporting system provides the team with a running tally of current open, due soon, and overdue records requests in a straightforward, color-blocked format. To address partially resolved PRA requests, the Public Records Office team adjusts a request's due date in NextRequest to match the anticipated production date communicated to the requester in a previous determination letter. Adjusting the due date allows for effective tracking of open, due soon, and overdue requests using the NextRequest reporting system, and, when combined with daily automated alerts, reminds staff to forward records to requesters in a timely manner, maintaining consistent rolling productions as necessary. Additional efficiency metrics available in NextRequest include a snapshot of cases opened and closed during a customizable timeframe, and the average number of days that it took assigned staff to complete the cases closed within that window.

California State Auditor's Assessment of 6-Month Status: Partially Implemented

The CPUC provided evidence that it is is regularly following up on California Public Records Act requests to which it has not yet fully responded. However, it has not memorialized these steps in a procedure document that describes, for example, when a request merits follow up to determine if responsive records can be provided to the requester. Additionally, the CPUC has not demonstrated that it is sufficiently addressing legacy requests that are not included in its new NextRequest system but to which it may be able to provide partial or full responses.

60-Day Agency Response

The CPUC agrees with this recommendation, and has established the following procedures to regularly track records requests. In May 2016, the Legal Division's Public Records Office opened a new online portal called "NextRequest" to receive and track all incoming records requests which includes these features; Requesters submit online requests and receive a private and secure portal to track their requests; An immediate e-mail is issued to the Public Records Office containing a tracking number and indicating the 10-day, statutorily-based due date; Automated daily reminders of "Overdue and Due Soon" requests are e-mailed to assigned staff with tracking numbers, past-due production dates, and future due dates; Automated daily "Notification Digests" are e-mailed to the Public Records Office, providing a snapshot of all case activity within the past 24 hours; and Publicly available color-coded tracking flags indicate to staff and the public whether a records request is closed (black), open (blue), due soon (yellow), or overdue (red).These processes have streamlined the Public Records Office's response management and tracking methods in a manner consistent with the State Auditor's recommendations. Finally, the Commission has a 2017-18 Budget Change Proposal (BCP) currently pending before the Department of Finance, in which Legal Division requested additional attorney and legal analyst staff for the Public Records Office team. Legal Division will assign one of the attorney positions to oversee the tracking and management of incoming and outstanding records requests and follow up with assigned Legal Division staff to ensure compliance with statutory deadlines. The attorney will provide bi-monthly status reports to the supervising Assistant General Counsel.

California State Auditor's Assessment of 60-Day Status: Pending

Although the CPUC provided a detailed explanation of its new processes related to California Public Records Act requests, it did not submit any supporting evidence to demonstrate that it has taken any of the steps it described or that it has developed related procedures as the recommendation directs. Further, the CPUC's response does not clearly indicate how the CPUC tracks the status of records requests that it received before implementing its new tracking system but has not yet fully resolved. Finally, during our audit we identified an instance in which the CPUC delayed sending responsive records to a requester. At the time of our audit, the head of the CPUC's legal division's public records office stated that the CPUC did not closely oversee the staff member assigned to respond to that request. It is not clear from the CPUC's response how the CPUC is ensuring that a similar lapse in response time does not occur again.

We look forward to CPUC addressing these areas and providing supporting documentation in its next response.

All Recommendations in 2016-104

Agency responses received are posted verbatim.