3. Background
Section 454.5(g) requires the Commission to adopt procedures to ensure the confidentiality of market sensitive information related to electrical corporations' procurement plans.2 Senate Bill (SB) 1488 requires the Commission to examine its practices under §§ 454.5(g), 583, and the California Public Records Act (CPRA), to ensure that they provide for meaningful public participation and open decisionmaking.3 This rulemaking implements SB 1488.
D.06-12-030 sought to develop a process that would permit parties in affected Commission proceedings to discover market sensitive information4 while protecting its confidentiality. This was to be achieved by use of Reviewing Representatives, as reflected in the Model Protective Order ultimately adopted by D.08-04-023. As a means of protecting confidential market sensitive information and thus, protecting the California electric market and ultimately California's ratepayers, D.06-12-030 permitted a party categorized as market participant to use a Reviewing Representative, subject to certain conditions, as set forth in Ordering Paragraph 5 of D.06-12-030.5 The criteria adopted by D.06-12-030 prohibited a Reviewing Representative of a market participant from being an employee of the market participant:
· Reviewing Representatives may not currently be engaged, directly or indirectly, in (a) the purchase, sale, or marketing of electrical energy or capacity or natural gas (or the direct supervision of any employee(s) whose duties include such activities), (b) the bidding on or purchasing of power plants (or the direct supervision of any employee(s) whose duties include such activities), or (c) consulting with or advising others in connection with any activity set forth in subdivisions (a) or (b) above (or the direct supervision of any employee(s) whose duties include such activities or consulting).
· Reviewing Representatives may not be employees of market participants.
· Reviewing Representatives shall use market sensitive data only for the purpose of participating in a formal Commission proceeding.
· Reviewing Representatives shall execute a nondisclosure agreement and be subject to a protective order which precludes the Representatives from disclosing market sensitive information to anyone who is a market participant or who is an employee or an agent of a market participant.
(D.06-12-030 at 49-50 Ordering Paragraph 5.)
The applications for rehearing filed by IEP and CAC/EPUC challenged whether the procedures set forth above provided sufficient access to Commission proceedings by all parties limited to using reviewing representatives.
D.09-03-046 provided parties with an opportunity to revisit the restrictions established for reviewing representatives to determine if there was a less restrictive methodology for protecting the confidentiality of market sensitive information.
In the rehearing proceeding, opening briefs were filed on July 2, 2009, by IEP; jointly by CAC/EPUC; jointly by the Joint Utilities (consisting of Pacific Gas and Electric Company (PG&E), Southern California Edison Company (SCE), and San Diego Gas & Electric Company), and the "Coalition Parties" (consisting of the Coalition of California Utility Employees, The Utility Reform Network and the Division of Ratepayer Advocates); and Hydrogen Energy International LLC (HEI).6 Reply briefs were filed on July 30, 2009 by IEP, CAC/EPUC, the Joint Utilities and Coalition Parties; and the Western Power Trading Forum.
2 Section 454.5(g) provides: "The [C]ommission shall adopt appropriate procedures to ensure the confidentiality of any market sensitive information submitted in an electrical corporation's proposed procurement plan or resulting from or related to its approved procurement plan, including, but not limited to, proposed or executed power purchase agreements, data request responses, or consultant reports, or any combination, provided that the ...[Division] of Ratepayer Advocates and other consumer groups that are nonmarket participants shall be provided access to this information under confidentiality procedures authorized by the [C]ommission."
3 Section 583 provides: "No information furnished to the [C]ommission by a public utility, or any business which is a subsidiary or affiliate of a public utility, or a corporation which holds a controlling interest in a public utility, except those matters specifically required to be open to public inspection by this part, shall be open to public inspection or made public except on order of the [C]ommission, or by the [C]ommission or a [C]ommissioner in the course of a hearing or proceeding. Any present or former officer or employee of the [C]ommission who divulges any such information is guilty of a misdemeanor."
The CPRA is set forth in Government Code Section 6250 et seq. Among other things, Government Code Section 6253 requires the Commission to make available to the public, records, that are not otherwise exempted, when requested.
4 D.06-06-066 (modified by D.07-05-032) adopted a process for determination of whether information is entitled to confidential treatment as "market sensitive" for purposes of § 454.5(g).
5 However, among other things, the applicants for rehearing of D.06-12-030 argued that they were not permitted to avail themselves of the reviewing representative process adopted in the challenged decision.
6 The July 13, 2009 motion of HEI to become a party is granted.
