3. Discussion

A. The Commission's Confidentiality Rules

This Commission adopted D.06-06-066 to implement Senate Bill No. 1488 (SB 1488).⁴ SB 1488 required that the Commission examine its practices regarding confidential treatment of information to ensure meaningful public participation in its proceedings and open decision-making, while taking into account its obligations under Pub. Util. Code § 454.5(g) and § 583 to protect the confidentiality of certain information. D.06-06-066 recognized that in some instances confidential treatment of data may not only be allowed, but may be required in order to carry out the Commission's statutory and constitutional duties. The Commission reasoned, among other things, that confidentiality protections are essential to avoid a repetition of electric market manipulation. However, the Commission also recognized the need to have as transparent processes as possible.⁵ In balancing these competing interests, the Commission determined that only information that could have a material impact on a procuring party's market price for electricity would be protected.⁶ Additionally, due to the strong public interest in the RPS program, the Commission provided for greater public access to RPS data than other data.⁷

A "Matrix of Allowed Confidential Treatment" for IOU Data was developed as Attachment 1 to D.06-06-066 (Matrix). The Matrix identifies categories of information to be treated as confidential. Matrix category
VIII.A. - at issue here - provides a window of confidentiality protection for "[RPS] Bid information." It protects as confidential for a specified period "participating bids, counter-party names, prices and quantities offered." The Matrix provides that the "[t]otal number of projects and megawatts bid by resource type (e.g., fossil, wind, solar, hydro-electric, etc.) [are to be] public after final contracts submitted to CPUC for approval." Thus, aggregate bid information from a specific solicitation is not made public until the solicitation is closed, i.e., all negotiations have concluded and the contracts are submitted to the Commission. This process reflects the understanding that the solicitation information is not market sensitive once negotiations have been concluded.

Until the solicitation is closed, information from the solicitation is made public on a piecemeal basis as PPAs are submitted for Commission approval. However, because negotiations remain pending for a large number of RPS solicitations, including solicitations from 2003, complete short-list data for many solicitations has not yet been made public.

B. The Data Is Not Market Sensitive If Released As Proposed By Staff

The standard set forth in D.06-06-066 is that "[w]here we find that the material is not `market sensitive,' we require the data's public disclosure."⁸ "Market sensitive" information is defined as information that has "the potential, if released to market participants, to materially affect a buyer's market price for electricity."⁹

The short-list and bilateral contract data is market sensitive on an individualized basis and properly protected as confidential pursuant to
D.06-06-066. This is especially so with regard to price information, and it is also so with regard to the information we propose to release here when that information is presented as data from a specific solicitation by a single utility, in a single year, particularly for more current years. However, when several years' data will be aggregated for release as proposed by Energy Division, with critical market-sensitive information withheld, the nature of the data changes. Release of several years of short-list and bilateral contract data in the aggregate - without identifying the bid prices, counter party names, solicitation year, or sponsoring utility - is consistent with D.06-06-066 which provides: "RPS information should be public to a greater extent than non-RPS data (except the price term in contracts, which may be confidential)."¹⁰ Energy Division proposes to release the data substantially in the form provided in the following example:

Generator ID	Technology Type	MW	Bus ID	Zone
P1	Solar	500	24701	East Riverside

In the data release, the "Bus ID" corresponds to a specific bus bar location as defined in the Transmission Expansion Planning Policy Committee (TEPPC) production simulation database.¹¹ The "Zone" will be a geographic area that is either a Competitive Renewable Energy Zone identified by the Renewable Energy Transmission Initiative (RETI),¹² or a larger geographic area, such as a state. The generator identification number will be randomly assigned and have no relationship to contract status.

As shown in the example, no price information will be disclosed, nor will the specific location, proposed for a project, or any other contractual terms or conditions be disclosed. Further, the aggregate information released will include information on all projects with signed contracts, including contracts from bilateral negotiations, as well as all other short-listed projects and bilateral negotiations already reported by the IOUs in their RPS Project Development Status Reports. Aggregating the information in this way should preclude identification of those projects still in contract negotiations, except to the extent that such information is already public.

We note that much of the data Energy Division proposes to disclose here is already public. There is already significant industry knowledge about proposed projects, including capacity, technology, and location. In addition to publicly available contracts approved by this Commission, many proposed projects have permit applications pending with various state and federal agencies which disclose such information. State and regional renewable planning efforts have also documented, by technology type, the general locations sought by renewable developers.

Given the amount of information otherwise available to industry participants, disclosing, in aggregate form, the short-list data from the 2003-2009 solicitation years, combined with bilateral contract information for the same period, without identifying the bid prices, counter party names, solicitation year, or sponsoring utility, does not "have the potential, if released to market participants, to materially affect a buyer's market price for electricity." For this reason, we find the data, if released as proposed by Staff, not to be "market sensitive" and we clarify that Staff may make it publicly available as soon as the 2009 solicitation information is available to include in the data release.

PG&E filed comments on the draft proposal stating that the information proposed to be released could be used by certain members of the public to identify specific projects under negotiation, potentially leading to higher energy costs through higher land or regulatory costs for project developers.¹³ PG&E proposed an alternative form of aggregation to address these concerns. PG&E also requested clarification about the manner in which the data will be released, and the impact of the proposal on future decisions regarding the release of the short-list data.

PG&E's concern that certain members of the public will use the short-list information for negotiating leverage is too speculative to have the potential to materially affect the market price for electricity, and furthermore, does not comport with our definition of market sensitive, which is information that has "the potential, if released to market participants, to materially affect a buyer's market price for electricity."¹⁴ While "market participants" was not defined in D.06-06-066, potential land owners and government permitting agencies do not appear to be the type of market participants D.06-06-066 was concerned with.

SCE, DRA, and SDG&E filed reply comments in support of PG&E's request for clarity. DRA recognized the value of the release of the short-list data consistent with the proposal and identified PG&E's alternative proposal as "onerous."¹⁵ DRA proposes that bilateral contracts under negotiation also be included in the data release.

This decision addresses many of these concerns and provides the clarity requested.

⁴ Stats. 2004, Ch. 690.

⁵ See, e.g., D.06-06-066 as modified by D.07-05-032 in App. A at 2.

⁶ Id. at 4.

⁷ Id. ("Greater public access should be provided for procurement documents relating to the RPS program because of the public interest aspects of the program.").

⁸ Id. at 44.

⁹ Id.

¹⁰ Id. at 64.

¹¹ Information about TEPPC is available at: http://www.wecc.biz/Planning/TransmissionExpansion/Pages/default.aspx.

¹² Information about RETI is available at: http://www.energy.ca.gov/reti/.

¹³ PG&E Opening Comments on Draft Proposed Decision, October 26, 2009, at 3.

¹⁴ D.06-06-066 as modified by D.07-05-032 in App. A at 44 (italics added).

¹⁵ Id.