Attorney General Paxton ruled in May 2021 that ERCOT is not required to release information to the public under the state’s open records law. If you can’t obtain information from ERCOT directly, you may be able to obtain the same information from PUC, the state agency that oversees ERCOT.
The Electric Reliability Council of Texas (ERCOT) manages the flow of electric power to more than 26 million Texas customers—about 90% of the state’s electric load. ERCOT is a 501(c)(4) nonprofit corporation and subject to oversight by the Public Utility Commission of Texas (PUC) and the Texas Legislature.
After Texans suffered widespread power outages in February 2021, ERCOT was flooded with requests for information related to its handling of the crisis. In a March 1, 2021 letter to the Texas Attorney General’s office, ERCOT said it was working to disclose “as much information as its governing regulations permit” but requested a ruling that it is not subject to the broader disclosure requirements of the Texas Public Information Act (TPIA).
The PUC has required ERCOT to adopt and comply with procedures for the public to obtain records “relating to the governance and budget of the organization, market operations, reliability, settlement, customer registration, and access to the transmission system.” 16 Tex. Admin. Code § 25.362(e). However, ERCOT is not required to release records it deems “Protected Information.” Section 1.3 of ERCOT’s Protocols (which are subject to PUC’s review and approval) define which records are protected and which are not.
By comparison, the PUC—and all other “governmental bodies” in Texas—are required to comply with the disclosure requirements of the TPIA. Tex. Gov’t Code §§ 552.001-552.376. The TPIA must “be liberally construed in favor of granting a request for information.” Tex. Gov’t Code § 552.001.
ERCOT claims it should not have to comply with the TPIA because PUC “has established specific information-disclosure regulations that take into account the unique nature of ERCOT’s role and ERCOT’s and the PUC’s expertise.” ERCOT argues that subjecting it to the TPIA “would interfere with the PUC’s ‘direct’ and ‘complete’ authority over ERCOT and would subject ERCOT to inconsistent regulatory regimes.”
In a ruling issued May 19, 2021, Texas Attorney General Ken Paxton agreed with ERCOT’s arguments, without providing further explanation. Thus, under the attorney general’s current interpretation, ERCOT is not obligated to comply with the broad disclosure requirements of the TPIA.
Nonetheless, the broad statutory definition of “public information” clearly contemplates that a non-governmental body may possess public information to which a governmental body has access and must disclose upon request. Tex. Gov’t Code § 552.002(a). Section 552.002(a) of the TPIA defines “public information” to include:
information that is written, produced, collected, assembled or maintained under a law or ordinance in connection with the transaction of official business: . . .
(2) for a governmental body and the governmental body:
(A) owns the information;
(B) has a right of access to the information; or
(C) spends or contributes public money for the purpose of writing, producing, collecting, assembling or maintaining the information[.]T
“Official business” means “any matter over which a governmental body has any authority, administrative duties, or advisory duties.” Tex. Gov’t Code § 552.003(2-a).
In other words, because ERCOT is “directly responsible and accountable to the [PUC],” which in turn “has complete authority” over ERCOT (Tex. Util. Code § 39.151), PUC is required to release certain information relating to ERCOT unless the information is otherwise excepted from disclosure under the TPIA.
In determining whether PUC must release information related to ERCOT, the attorney general generally considers what information ERCOT has deemed confidential under its Protocols. For example, in a June 22, 2021 ruling, Attorney General Paxton concluded that PUC must release certain information relating to ERCOT because the information did not constitute “Protected Information” as defined in ERCOT’s Protocols.
There are several good reasons to request information about ERCOT from PUC, instead of requesting information from ERCOT directly. Because it is a governmental body, PUC is required to comply with the TPIA’s requirements for responding to public information requests. Specifically:
- Within 10 business days of receiving a public information request, PUC must either (i) produce the information or (ii) request an attorney general ruling as to whether the information can be withheld. If PUC fails to do so, the information is “presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Tex. Gov’t Code § 552.302.
- If an attorney general ruling is requested, the requestor can submit written comments arguing why the information should be released. Tex. Gov’t Code § 552.304.
- If the PUC refuses to produce public information or information that the attorney general has determined is not excepted from disclosure, the requestor can file a lawsuit against PUC to compel it to release the information. Tex. Gov’t Code § 552.321. A requestor who “substantially prevails” in a suit against the PUC under the TPIA is entitled to an award of attorney fees. Tex. Gov’t Code § 552.323.
Nonetheless, depending on the circumstances, it may be better to submit the request to ERCOT.
To sum up, there are at least two ways you can obtain information related to ERCOT:
- Request information from ERCOT directly, using their online request form.
- Request information from PUC, the state agency that oversees ERCOT, according to the instructions on the PUC website.
As pressure mounts for PUC and ERCOT to release information about operation of the state’s electric grid, requestors may see some changes to ERCOT Protocols. For example, PUC recently directed ERCOT to release information about power plant outages within 3 days of the outage, instead of 60 days. This change only applies to power outages that occur through September 2021.
Cobb & Counsel has significant experience in handling TPIA matters and litigating open government issues. If you are involved in a dispute regarding the release of government records, contact us to discuss your options.