VIII. The Due Process and Confrontation Clauses Do Not Preclude Use of Confidential Data
SB 1488 does not create a new due process right to have access to every document on which the Commission relies in rendering its decisions. While it expresses a preference for open decision making, it does not prohibit the use of confidential data in appropriate cases. Nor could it do so, since long-established privileges and protections - such as those for trade secrets and for "market sensitive" information under § 454.5(g) - remain on the books. The due process issues CAC/EPUC raise lack merit in the procurement context.
A. Parties' Positions - Due Process and Confrontation Claims
CAC/EPUC claim that SB 1488 gives them a due process right to have copies of all documents a party submits to the Commission: Under this reading of the statute, the Commission may never render a decision based on information that is confidential or that is not available to all parties on the same terms. CAC/EPEC state that all parties must have "equal access to the information relied upon by the Commission in reaching its decisions. . . . [A]ll parties must have the same level of access to the information for there to actually be open decision making. The Commission simply cannot use as a basis for its decisions any information that is not disclosed, be it publicly or pursuant to a reasonable protective order, and sustain an open decision making process."35 CAC/EPUC cite a series of fair hearing and criminal cases which address a party's right to cross examine witnesses, and claim that if they do not have complete access to all data before the Commission, their due process rights are violated.36
In contrast, SCE asserts that, "The law in California is well established. In the proceedings in which the IOUs submit their market-sensitive information, due process does not require the Commission to hold hearings and it certainly does not require cross-examination of witnesses or formal discovery." SCE cites the California Supreme Court's holding in Wood v. Pub. Utils. Comm'n, 4 Cal. 3d 288, 292 (1971), for the proposition that, "In adopting rules governing service and in fixing rates, a regulatory commission exercises legislative functions delegated to it and does not, in so doing, adjudicate vested interests or render quasi-judicial decisions which require a public hearing for affected ratepayers." SCE points out that none of the cases CAC/EPUC cite involve this Commission or another administrative body.37
Thus, SCE contends, CAC/EPUC are incorrect in claiming that the Commission would violate due process if it did not allow all parties equal access to records and the right to test those records by cross-examination.
B. Discussion - Due Process and Confrontation Claims
We reject CAC/EPUC's assertions that the Commission may never rely on confidential information in reaching its decisions, must afford all parties equal access to all data, and is in violation of the constitutional right to due process and to confront witnesses if it allows parties to designate certain information as confidential.
Even in a case where due process rights adhere, it is not a violation of due process for an agency to allow certain records to be deemed confidential where there is a statute allowing confidentiality in certain cases. In Trailer Train Co. v. State Board of Equalization, 180 Cal. App. 3d 565 (1986), the court found:
The trial court properly ruled that Trailer Train was not denied the right of cross-examination with respect to this witness' testimony. [California Revenue and Tax Code] Section 11655 provides that, subject to limited exceptions not applicable in this action, "all information and records relating to the business affairs of persons required to report to the board pursuant to this part shall be held secret by the board." (§ 11655, subd. (a).) The documents sought to be disclosed come within the meaning of this provision. (§§ 11652-11654.) As such, the Board had an obligation not to disclose the information to Trailer Train; there was no denial of its right to cross-examine the witness. In summation, Trailer Train has not established any of its several due process challenges.38
As we discuss elsewhere in this decision, § 454.5(g) allows for confidential treatment of certain utility procurement information. The trade secret statute, Evidence Code 1060, provides other protection. Thus, even if CAC/EPUC were correct that they have due process rights in Commission rulemaking proceedings, such rights do not require that they have access to every record on which the Commission relies in rendering its decisions.
We support openness in decision making and public access to records in Commission proceedings wherever possible. However, we also must allow records protected by statute to be held in confidence. Allowing confidential treatment of such records does not violate any party's due process rights.
35 CAC/EPUC Opening Brief at 4-5.
36 See also IEP Opening Brief, at 6-7
37 SCE Reply Brief, filed Feb. 22, 2006, at 15-16.
38 Id. at 589.
