Discussion

With regard to the substantive concerns raised by Pacific Bell, its own objection to the relief requested by ORA demonstrates that the clarification sought by ORA is necessary. Pacific Bell focuses on the Commission's reassignment in D.00-02-047 of the Pacific Bell audit responsibility from ORA to the Telecommunications Division and Pacific Bell's belief that with such a reassignment ORA has no role relative to the audit nor authority to seek related information from Pacific Bell until the audit is completed and presented in a formal Commission proceeding. Pacific Bell states:

"In examining this paragraph [in D.01-02-041 complained of by ORA], there is no inconsistency. First, Pacific is not challenging ORA's overall responsibility to represent consumers or to obtain information in performing its duties. What is at issue in this matter is not ORA's general responsibilities, but the degree and extent to which it can or should participate in the audit. In this regard the Decision was, once again, clear and unequivocal. The decision specifically tells ORA when it can participate in the audit: `...when the Pacific Bell audit information and results are submitted in the NRF proceeding.' It then tells ORA how it can participate in the audit: `ORA shall have discovery rights as do other parties in the proceeding.' ...

The Commission's articulation in the Decision is, moreover, consistent with ORA's duties and responsibilities as defined in section 309.5. ORA is the division created to represent customers `in commission proceedings' (Pub. Util. Code §309.5(a)), the Commission is directed to provide resources to ORA to participate `in all significant proceedings' (§ 309.5(c)), and the Commission is directed to ensure against conflicts of ORA `on a particular case or proceeding..." § 309.5(d). The decision [D.00-02-041] recognizes that ORA's `duty' under section 309.5 is `to represent consumer interests in Commission proceedings.' Decision p. 5. Clearly, the Commission's use of that term was deliberate - the Decision says when and how ORA can participate in the next NRF proceeding. Nothing in the Decision precludes ORA's participation in the NRF proceeding, through discovery, once the audit has been submitted." (Pacific Bell Response at 3-5.)

It is precisely this inferred limitation on ORA's information seeking authority to which ORA objects and for which it seeks modification.

In discussing ORA's participation in the proceeding that will ultimately review the tendered audit report (expected to be the up-coming triennial NRF review), the Commission may have allowed an inference to be made that ORA's on-going broad discovery rights, as both a statutory organization and a unit of the Commission's staff, were diminished in some fashion and did not commence until the audit was completed and became the subject of review in a formal proceeding. Such an inference would be erroneous, clearly at odds with both our language and our intent, and at odds with the plain language of applicable statutes. While we do not believe such an inference is reasonable, it is being asserted by Pacific Bell, and clarification of our decision to dispel this unreasonable inference is appropriate.

Pacific Bell is correct that we do not seek two formal audits of Pacific Bell. We have given the formal audit responsibility to the Telecommunications Division. That does not, however, serve to limit the authority for ORA to obtain all information necessary to carry out its responsibilities as a unit of the Commission's staff and as the organization designated with the responsibilities set out in § 309.5. The fact that ORA may seek information comparable (or even identical) to that sought by the Telecommunications Division in carrying out the audit we have directed, is not inappropriate; indeed it is consistent with ORA's statutory independence to pursue discovery as ORA deems fit.

ORA's scope of authority to request and obtain information from entities regulated by the Commission is as broad as that of any other units of our staff, including the offices of the Commissioners. It constrained solely by a statutory provision that provides a mechanism unique to ORA for addressing discovery disputes.

ORA's rights to seek information from entities regulated by this Commission, including Pacific Bell, principally arise from two statutes - Pub. Util. Code. §§ 314 and 309.5.

Pub. Util. Code §314 states that, among others:

"...and each officer and person employed by the commission may, at any time, inspect the accounts, books, papers, and documents of any public utility. (§ 314 (a), emphasis added.)

This applies also to:

"...any business which is a subsidiary or affiliate of, or a corporation which holds a controlling interest in, an electrical gas or telephone corporation with respect to any transaction between the electrical, gas, or telephone corporation and the subsidiary, affiliate, or holding corporation on any matter that might adversely affect the interests of the ratepayers of the electrical, gas or telephone corporation. (§ 314(b).)

This provision makes no reference to the need for a proceeding to exist, but is intended to provide access for our staff, including ORA, to undertake audits or investigations, obtain information, and ask questions at any time and for any purpose related to their scope of work on behalf of the Commission and the people of the State of California. By historical evolution, the statutory right to inspect the "accounts, books, papers, and documents" has come to include the right to propound data requests by which the holders of these accounts, books, papers, and documents can be compelled to search for and provide these materials or analyze them in some fashion. In fact, it is for mutual convenience that data requests are utilized. The statutory authority allows staff acting within the scope of their Commission responsibilities to arrive at a utility unannounced to undertake such an inspection of records.

Pub. Util. Code § 309.5 was added in 1996. (Ch. 856, Stats. 1996.) It did several things relative to ORA. It transformed the staff unit already charged by Commission directive with representing the long-term interests of customers (Resolution of the Commission dated July 6, 1984, creating the Public Staff Division) from a line staff reporting to the Executive Director to a statutorily mandated unit with a separate budget and a director appointed by the Governor. With respect to access to information from regulated entities it made no changes in the scope of ORA access authority but did add a procedure for resolving disputes over access when they arose. Specifically it states:

"The division [designated as ORA] may compel the production or disclosure of any information it deems necessary to perform its duties from entities regulated by the commission provided that any objections to any request for information shall be decided by the assigned commissioner or by the president of the commission if there is no assigned commissioner." (§ 309.5 (e).)

While the role of ORA is to "represent the interests of public utility customers and subscribers in commission proceedings" (§ 309.5 (a)), its authority to seek out "any information it deems necessary to perform its duties" is not limited to the existence or timing of a "proceeding". It was not our intent to constrain ORA's authority in this fashion and, being both the entity described in § 309.5 and employees of the Commission as referred to in § 314, we would not do so. If Pacific Bell or any other regulated entity has objection to a specific request for information from our staff, procedures exist for addressing such objections.