VII. Section 583 Does Not Provide a Substantive Basis for Keeping Data Confidential
A. Parties' Positions on Meaning of § 583
Many parties seeking confidential treatment characterize § 583 as creating a substantive right to such treatment. SCE, for example, states that "Section 583 presumes that data submitted to the Commission would be confidential, except where specifically made public."30 If another entity seeks access to this data, SCE contends, it must prove that the presumption of confidentiality does not apply. Similarly, SDG&E asserts that the party seeking access to utility records has the burden of proof under § 583.
Occasionally, parties propose a narrow interpretation of § 583. The CEC, for example, proposes limiting the scope of the statute to bookkeeping and accounting records of utility, rather than planning information such as that related to electricity procurement.31
B. Discussion - Section 583 Does Not Create a Presumption in Favor of Confidential Treatment
As both courts and this Commission have stated in the past (and as reiterated in the OIR), § 583 does not require the Commission to afford confidential treatment to data that does not satisfy substantive requirements for such treatment created by other statutes and rules. This is important because several of the parties claim that there is a legal presumption of confidentiality for all data. If this were true, the Commission would be legally obligated to protect whole swaths of information without first considering whether the information meets relevant legal tests for trade secrets, privilege, or other established provisions protecting data from disclosure.
Section 583 sets forth a process for dealing with claims of confidentiality, and does not contain any substantive rules on what is and is not appropriate for protection.32 Section 583 states:
No information furnished to the commission 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 commission, or by the commission or a commissioner in the course of a hearing or proceeding. Any present or former officer or employee of the commission who divulges any such information is guilty of a misdemeanor.
Thus, § 583 sets out the first procedural step for a party claiming confidentiality. That party has the right to submit relevant material under seal when it first submits it to the Commission. However, the material is not entitled to remain confidential forever based on the invocation of § 583. Rather, the affected party must accompany its records with a motion establishing the legal and factual basis for confidential treatment.
As we stated in the OIR, § 583 does not limit our ability to disclose information. As the United States Court of Appeals for the Ninth District noted in Southern California Edison Company v. Westinghouse Electric Corporation (9th Cir. 1989) 892 F. 2d 778, 783: "Section 583 does not forbid the disclosure of any information furnished to the CPUC by utilities. Rather, the statute provides that such information will be open to the public if the commission so orders, and the commission's authority to issue such orders is unrestricted." Similarly, In Re Southern California Edison Company [Mohave Coal Plant Accident], D.91-12-019, 42 CPUC 2d 298, 300 (1991), states that § 583 "assures that staff will not disclose information received from regulated utilities unless that disclosure is in the context of a Commission proceeding or is otherwise ordered by the Commission" but does not limit our broad discretion to disclose information.33
Nothing in § 583 gives utilities a substantive right to confidential treatment for any type of information. Rather, the statute provides a process for handling information a party believes is confidential. We made this point clear in In Re Southern California Edison Company, supra: "Section 583 does not create for a utility any privileges of nondisclosure. Nor does it designate any specific types of information as confidential. To justify an assertion that certain documents cannot be disclosed, the utility must derive its support from other parts of the law."34
Thus, the mere fact that a party invokes § 583 says nothing about whether a document contains trade secrets, is privileged, or is otherwise entitled to protection. The statute allows a party to submit information about which it has a concern under seal in the first instance, so that its claims about confidentiality may be tested. In determining whether the claims have merit, the Commission does not look to any provision in § 583, because nothing in the statute addresses what types of records should and should not be confidential. Other provisions - the trade secret law, the Evidence Code provisions regarding attorney-client and other privileges, confidentiality statutes such as § 454.5(g), GO 66-C as currently written - provide the substantive theories for asserting confidentiality.
Once the Commission finally determines, based on law other than § 583 itself, that a claim of confidentiality lacks merit (and any appeals are exhausted), the information must be produced.
30 SCE Opening Brief at 16.
31 CEC Opening Brief at 4-5.
32 Because § 583 is a statute regarding process, rather than one that identifies substantive categories of data, we find it unnecessary to address the CEC's claim that the statute protects only bookkeeping and accounting records and not planning documents such as those related to electricity procurement, although we find that interpretation to be strained.
33 D.91-12-019 notes: "Section 583 does not create for a utility any privileges of nondisclosure. Nor does it designate any specific types of documents as confidential. To justify an assertion that certain documents cannot be disclosed, the utility must derive its support from other parts of the law." 42 CPUC 2d at 301. That decision later states: "Further, simply citing Section 583 does not establish the confidentiality of a document. Section 583 does not discuss or define confidentiality, nor establish any privileges. In order to protect documents that would otherwise be released pursuant to Section 583, the utility must find its authority or relevant policy elsewhere." 42 CPUC 2d at 302-03.
34 D.91-12-019, 42 CPUC 2d 298, 301 (1991), 1991 Cal PUC LEXIS 902, at *8 (emphasis added).
