V. Practical Application of SB 1488
There are at least two ways of implementing our "middle ground" view that we must scrutinize with rigor all confidentiality claims, but that such claims will satisfy statutory requirements for confidentiality in some instances.
A. Matrix Approach
The first method of addressing confidentiality claims involves identification by the Commission of general categories of information and the confidentiality protections to be applied prospectively to those categories. We have attempted, with the parties' assistance, to identify most categories of data that will be called for in the electricity procurement area and have outlined those categories in two versions of a Matrix (an IOU Matrix and an ESP Matrix) that accompany this decision as Appendices 1 and 2.
An earlier list of documents and preliminary matrix were appended to the original OIR for this proceeding, but the matrices have been expanded to include new categories and subcategories of records. This Commission's Energy Division made tentative recommendations regarding the confidentiality treatment of the original categories. In numerous meet and confer sessions, several parties responded to the Energy Division's recommendations and added additional recommendations for the categories added to the Matrix. In this decision, we make determinations for how each category in the Matrix should be treated. No data that are already public may be treated as confidential. Data an IOU has furnished to an affiliated company shall be deemed public data.
We delegate to the Assigned Commissioner and Administrative Law Judge authority to make changes to the Matrix as we gain experience with its use.
B. Approach for Data Not in Matrix
The Matrix relates to data relevant to electric procurement (and related subjects as identified in the OIR and scoping memo for this proceeding). The scoping memo states that "Phase One will examine confidentiality only in the context of the following proceedings, and only to the extent the proceedings focus on the utilities' procurement responsibilities."
· R.04-04-003, the current electric procurement proceeding;
· R.03-10-003, the community choice aggregation rulemaking;
· R.04-04-025, the avoided cost and QF pricing rulemaking;
· R.04-04-026, the renewables portfolio standard rulemaking;
· R.04-03-017, the distributed generation rulemaking;
· R.01-08-028, the energy efficiency rulemaking;
· I.00-11-001, the transmission planning investigation; and
· R.04-01-026, the transmission assessment process rulemaking.22
However, this order and the Matrix apply to data regardless of the proceeding in which it is relevant, including the proceedings listed in this decision, successor proceedings, or proceedings not listed above in which the data are relevant.
We plan to address confidentiality in other contexts in Phase Two of this proceeding. In the interim, current rules will continue to apply. Generally speaking, those rules place the burden of proof on the party seeking confidential treatment. That party must file a motion describing the data at issue, and prove that it should be filed under seal (by showing the information is privileged, protected by a confidentiality statute, covered by General Order (GO) 66-C, or otherwise required to be held confidential (discussed more fully below)).
C. Effect of GO 66-C
In the 1970s, the Commission adopted GO 66-C, which explains how to obtain records in the Commission's possession.23 GO 66-C begins by listing the types of documents not open to public scrutiny, including "records or information of a confidential nature" furnished to the Commission pursuant to Pub. Util. Code § 583.24 The general order then lists information falling into this category, including:
b) Reports, records, and information requested or required by the Commission which, if revealed, would place the regulated company at an unfair business disadvantage.
In the years since GO 66-C was adopted, parties submitting documents in our proceedings have routinely relied on GO 66-C to shield data from public view by invoking the foregoing provision. We stated in the OIR that "In view of SB 1488's concerns about openness, GO 66-C may require revision."25
We have not focused on GO 66-C in this phase and are not prepared to address its continuing viability here. However, until we change or repeal it (or opt to leave it intact upon examination) GO 66-C shall continue to apply to data not addressed in the Matrix. That is, in the interim, to the extent the Matrix contradicts GO 66-C, the Matrix shall govern. Other portions of GO 66-C not related to electric procurement will remain in place unless and until we change them. Thus, for data not included in the Matrix, a party seeking confidential treatment should continue to file a motion seeking leave from the Commission to retain such material under seal. The filing party shall bear the burden of proving that its information deserves such treatment.
22 Scoping Memo and Ruling of Assigned Commissioner and Administrative Law Judge, dated Oct. 17, 2005, at 4-5 (emphasis in original).
23 GO 66-C and all other Commission General Orders are available on the Commission's website at http://www.cpuc.ca.gov/static/official+docs/i_go.htm.
24 We discuss § 583 in more detail below.
25 For a further discussion of GO 66-C, we refer parties to our recent decision on the subject, Decision (D.) 05-04-030.
