Clean-energy group questions regulators' letters that oppose APS campaign disclosures

A clean-energy group wants to know if two Arizona utility regulators got help from Arizona Public Service Co. in writing letters that oppose forcing the company to disclose what it spent on last year’s election campaigns.

The group's public-records request for the documents in their original form, which would show their electronic history, was rejected by Arizona Corporation Commission legal staff.

One of the regulators, Doug Little, said that the suggestion that he needs help from APS in writing such a letter is “preposterous and personally insulting.”

Regulators Little and Tom Forese won election last year with the help of $3.2 million in spending by independent political groups that don’t disclose their donors. APS is widely thought to be the source of that money.

Two other commissioners, Susan Bitter Smith and Robert Burns, asked utilities in a Sept. 8 letter to refrain from participating in the 2016 elections.

The fifth commissioner, Bob Stump, said there is no practical way for the regulators to prevent utilities from financing elections unless the laws are changed.

Forese and Little wrote long letters citing the utility’s freedom of speech and case law that indicate that restricting contributions would violate the state constitution.

"To attempt to prohibit people or organizations from spending money to engage in political speech is the same as prohibiting them from speaking," Little wrote.

"The Supreme Court has never permitted a campaign finance regulatory system that favors certain speakers over others and treats candidates for the same office differently," Forese wrote.

The executive director of the Checks and Balances Project, an advocacy group that has been in a high-profile battle with the commission over public records for most of the year, said the letters were suspicious.

The project, based in the Washington, D.C., area, is funded by undisclosed clean-energy advocates.

"The letters themselves were so vociferous and so … strongly worded that they raised questions as to who actually authored them,” Scott Peterson, the executive director, said.

“The bewildering responses they have provided to basic questions just strengthens people’s impression that Forese and Little got help crafting their arguments as to why the ACC should not subpoena to get to the bottom of APS’ electoral spending,” Peterson said. “The commission has started a campfire and is using its credibility as fuel.”

The Arizona Corporation Commission refused on Thursday to release documents from two commissioners in their original form, which makes it impossible to determine whether the regulators wrote the legal opinions themselves or had assistance.

The Checks and Balances Project filed a public-records request seeking the original documents filed by Forese and Little. The group requested the documents “in their native format” and including the metadata to determine if APS or an APS-affiliated "dark money" group contributed information in the letters for the regulators. Metadata is the electronic information that can identify when a document was created and its history.

The commission did not release the documents in their original Microsoft Word format. It released a PDF document for each commissioner that included copies of e-mails and drafts of the letters, and the drafts were entirely blacked out.

Little said that he consulted with his policy adviser at the Corporation Commission and nobody else in crafting his letter opposing restrictions on the free speech of utilities.

“I will state for the record that the arguments and positions expressed in my letter to the docket are my own and originated with me," he said. " I did consult with my policy adviser, and over the course of several discussions, the draft evolved into the final letter that was docketed. No one else was involved in the preparation of the letter."

Forese was unavailable for comment Monday.

Commission Executive Director Jodi Jerich said that it is clear from the e-mail strings that Forese and Little consulted only with the policy advisers on their commission staff, and nobody else.

“There was nothing that showed any e-mails coming from APS,” she said.

In addition, the legal staff for the commission is responsible for responding to public-records requests, not the commissioners themselves, she said. She said if the commissioners e-mailed with APS representatives on the subject, then those e-mails would have been provided by the legal staff.

An APS official declined to answer whether anyone from the company was involved in writing the letters or whether releasing the metadata would show the commissioners acted independently.

"Those are questions for the ACC," APS spokesman Jim McDonald said.

In 2009, the Arizona Supreme Court ruled that metadata that identifies the creation and history of electronic documents is subject to the state public-records law.

The case was Lake vs. City of Phoenix, and the parent company of The Arizona Republic, Gannett Co., Inc., submitted a friend-of-the-court letter on behalf of Phoenix police Sgt. David Lake, who was seeking the records.

Lake filed a records request for documents from the city, which he believed were backdated. He requested the metadata for the documents and the city denied his request. Lake sued and two lower courts sided with the city before reaching the Supreme Court.

The court also determined this would not create a significant burden on public offices subject to public-records laws because they simply could provide records in their “native format.”

Jerich said that the drafts of the commissioners' letters were redacted because of exemptions to the records law for documents that involve attorney-client communications and “legislative privilege.”

She said the documents were properly redacted and the commission does not have to release the documents in Microsoft Word format.

“If the underlying document is privileged, the metadata attached to that document is privileged,” she said.

Peterson disagreed, saying “legislative privilege” is not a valid reason to withhold the records.

“What actual ‘legislating’ is going on here when these letters are being drafted? None,” he said. “Is this the Corporation Commission’s way of saying that people who are not their attorneys are writing the letters? If so, then there can be no claim whatsoever that attorney-client privilege applies.”

Meanwhile, Don Brandt, president and CEO of APS parent company Pinnacle West Capital Corp., told the commission in a Friday letter that the companies would not refrain from political spending. The letter was the company's response to Burns and Bitter Smith's letter asking utilities not to participate in the 2016 election.

“With respect, the companies cannot agree to forfeit any of their First Amendment rights to speak on public issues,” Brandt wrote. “The companies will continue to advocate for sound policies that enable a sustainable energy future for Arizona.”

Brandt said the request to stay out of elections was “problematic” because other political groups not regulated by the commission will “undoubtedly” participate in the elections. APS has been at odds with rooftop solar-panel installation companies in particular over the past two years.

“It is no secret that many entities have strong economic interests in commission decisions,” Brandt wrote. “The commission will not possess jurisdiction over all of these entities.”

One party refraining from spending while the other continues to finance elections creates a “less informed, more skewed” public debate, he said in the letter.