6. Remaining Evidentiary and Confidentiality Issues

The sole remaining evidentiary issue, receipt in evidence of the document marked for identification at hearing as TURN's Exhibit 151-CCC, is now moot. The ALJ had directed the parties to brief issues related to the admission of this highly confidential document, which concerns Procurement Review Group data for another utility. Since TURN no longer seeks admission of the document, the ALJ should destroy the copy tendered at hearing and should not lodge it in the formal file.

The April 8, 2011, joint motion of SDG&E and Rim Rock raises the remaining confidentiality issues. SDG&E and Rim Rock seek to file under seal information redacted from the settlement, as well as all of Exhibit A to the settlement (consisting of the amended transaction documents), pursuant to § 454.5(g) and § 583, General Order 66-C, D.06-06-066, D.08-04-023 and Rule 11.4 of the Rules.

D.06-06-066, as modified, establishes two matrices, one for investor-owned utilites (IOUs), the IOU Matrix, and one for energy service providers (ESPs), the ESP Matrix. Both matrices identify categories and sub-categories of data entitled to confidentiality and specify the nondisclosure terms applicable. The confidentiality afforded under the matrices is derived from statutory protections for non-public market sensitive and trade secret information, including authority set forth in § 454.5(g) and § 583, Government Code § 6254(k), and statutes referenced in the Commission's General Order 66-C. The party claiming protection under either matrix must show:

1) That the material it is submitting constitutes a particular type of data listed in the Matrix;

2) Which category or categories in the matrix the data correspond to;

3) That it is complying with the limitations on confidentiality specified in the Matrix for that type of data;

4) That the information is not already public; and

5) That the data cannot be aggregated, redacted, summarized, masked or otherwise protected in a way that allows partial disclosure.¹⁶

In compliance with these requirements as applicable to the IOU Matrix, SDG&E and Rim Rock have attached to the motion as Exhibit B the declaration of SDG&E's witness Moftakhar, the Financial Planning Manager in the Financial Analysis Department. The declaration, which satisfactorily addresses each requirement for confidential treatment under the IOU matrix, includes this chart (at page 3):

Description of Data	Matrix Category	Period of Confidentiality
Settlement Agreement: Shaded data, C-RR	VII.G.	Contract Terms and Conditions Confidential for three years following delivery starts or until one year following expiration, whichever comes first.
Description of Data	Matrix Category	Period of Confidentiality
Confidential Exhibit A: First Amendment to the Participation Agreement, C-RR	VII.G	Contract Terms and Conditions Confidential for three years following delivery starts or until one year following expiration, whichever comes first.
Description of Data	Matrix Category	Period of Confidentiality
Confidential Exhibit A: Annex II Pricing Addendum, C-RR	VII.G VIII.A VIII.B	Contract Terms and Conditions Confidential for three years following delivery starts or until one year following expiration, whichever comes first. Raw Bid Data -Always confidential. Summaries of bids (total MW, MWH, technology types, etc) are confidential until final contracts are submitted to CPUC for approval. Quantitative Analysis in Scoring and Evaluation of Bids Confidential for three years after winning bidders selected.
Confidential Exhibit A: amended Table of Base Case Model Inputs, C-RR	VII.G VIII.A VIII.B	Contract Terms and Conditions Confidential for three years following delivery starts or until one year following expiration, whichever comes first. Raw Bid Data -Always confidential. Summaries of bids (total MW, MWH, technology types, etc) are confidential until final contracts are submitted to CPUC for approval. Quantitative Analysis in Scoring and Evaluation of Bids Confidential for three years after winning bidders selected.
Confidential Exhibit A: Amended and Restated LLC Agreement of NaturEner Rim Rock Project Holding Company, C-RR	VII.G	Contract Terms and Conditions Confidential for three years following delivery starts or until one year following expiration, whichever comes first.

The declaration also lays out alternative grounds for confidential treatment, addressing the standards developed under § 583 and § 454.5(g) (protection of market sensitive information), Evidence Code § 1060 (trade secret protection) and General Order 66-C (protection against disclosures that would subject a regulated entity to an unfair business disadvantage).

The motion should be granted. Confidential treatment of the requested information is necessary to protect against inappropriate disclosure of confidential, commercially sensitive information pertaining to SDG&E's electric procurement resources and strategies and Rim Rock's confidential and proprietary cost information. The information should be placed under seal subject to the previously-established confidentiality designation for this docket "C-RR" (which pertains to confidential information available to the Commission and signatories of confidentiality agreements for this docket, including Rim Rock).¹⁷

¹⁶ D.06-06-006, as modified by D.07-05-032, Ordering Paragraph 2.

¹⁷ This docket has several levels of confidentiality. Rim Rock is excluded from access to certain other categories of market-sensitive data identified as "C."