XVIII. Comments on the Proposed Decision

The proposed decision of Commissioner Grueneich in this matter was mailed to the parties in accordance with Section 311(d) of the Public Utilities Code and Rule 77.1 of the Rules of Practice and Procedure. The parties filed comments on June 19, 200683 and reply comments on June 26, 2006.84 The consumer groups (DRA, TURN and Green Power) generally support the proposed decision with very minor changes.

In no particular order, we have made the following changes/clarifications to the proposed decision based on comments:

CMTA, CLECA, IEP, and CAC/EPUC all raise issues related to the definition of "market participants." We lack an adequate record on this issue. While CMTA addressed it during the proceedings, other parties did not explain the definition of market participants, how they differ from non-market participants, and what groups belong in each category. The parties shall submit comments of no more than 15 pages on this issue in 30 days from issuance of this decision. We are committed to promptly issuing a decision on this issue. In the interim, we remove the discussion finding that CMTA is a market participant.

TURN asks for more time for the parties to meet and confer on the terms of a model protective order, and CMTA asks that we allow another draft protective order to be considered as a model. We will modify the timing to 60 days (from 30), and allow any model protective order, and not just those issued with the proposed decision, to serve as a basis for discussion. We expect the parties to agree on all non-controversial terms of a model protective order during the meet and confer session, and to attempt to reach agreement on the controversial terms. Parties shall assume that the protective order must be consistent with this decision. We delegate to the assigned ALJ the authority to approve the model protective order.

CEC asserts that other utilities (e.g., Modesto Irrigation District and PacifiCorp) release more information than we require be released here, and do so without harm. We do not find these utilities analogous to the large IOUs at issue here. As SCE pointed out in its post-hearing brief:

The experiences of Modesto, however, are not applicable to the IOUs because Modesto operates under a different type of procurement market and under a different regulatory environment. Moreover, it should be noted that the basis of Modesto's argument is solely related to resource and procurement forecasts. Modesto believes supplier information (i.e. the specifics of individual contracts) and pricing information should be kept confidential.

One of the most important distinctions between Modesto and the IOUs is size. Modesto is a small utility that "provides electric service to over 106,000 customers with a combined peak load of approximately 632 Megawatts." SCE, on the other hand, is one of the largest investor owned electric utilities, serving more than 13 million people. Therefore, the release of Modesto's forecast information to market participants does not have nearly the same impact on the energy market as the release of SCE's confidential information would . . . .85

PG&E made similar observations about the PacifiCorp example:

PG&E must rely on the market to fill its net open position to a much greater extent than is the case for PacifiCorp: PacifiCorp's utility-owned generation produces 72 percent of its energy needs. . . . PG&E by contrast is able to supply only 43 percent of its energy requirements using its utility-retained generation. In addition, PG&E serves a substantial portion of its load using energy from QFs and from the contracts the Commission allocated to it from DWR. With the QF contracts, PG&E must hedge the natural gas price risk inherent in the SRAC energy price; with the DWR contracts, some are dispatchable and also subject to natural gas price risk. PacifiCorp does not have a direct analogue to this form of natural gas price risk.86

AReM/CNE and the CEC are concerned that we are affording their data less protection than IOU data. We do not intend in this decision to protect one type of data more/less than another type. We do not rule out greater protection for ESPs (or IOUs) in certain situations.  The Commission's intent is not to provide ESPs less protection than IOUs, but simply to allow some case-by-case flexibility. That said, to the extent we are releasing more information on RPS than general procurement, and ESPs have RPS data and no § 454.5 procurement data, it may be said that they are releasing more data for RPS. However, this is not due to their status as ESPs; rather, it is because we believe there is great public interest in whether California utilities are meeting targets for procurement of renewable energy. IOUs will have to produce RPS information on the same terms as ESPs.

We make clear that DRA staff shall have the same access to data as other Commission staff, which has always been our intent.

We agree with TURN that the proposed decision should be modified to state that if a procuring party can show that public release of its data will affect the price paid by that utility for electricity (even if the market price paid by all buyers is not affected), such information is "market sensitive" and protected under § 454.5(g). The proposed decision required a showing of impact on the market price, not the individual price paid by the utility. We agree that ratepayers are harmed from unreasonable price impacts to the utility serving those ratepayers, and that the change therefore is warranted.

The proposed decision prohibits closed hearings. TURN and IEP point out they are used, albeit rarely. We will retain a general rule that no closed hearings are allowed, unless the party seeking such a hearing can prove that there is no other way to protect the confidential information (through circumspection or abbreviation in testimony, sealed exhibits, reference to a document without revealing confidential contents, etc.). We expect closed hearings to be extremely rare.

Information that is public anywhere shall be public everywhere. Nothing in this decision allows any party to withheld information, or parts of information, already revealed, or required to be revealed, elsewhere. The IOUs also ask us to give them a period of time to release information this decision requires be public. We do not believe such a rule is required. Information that is required to be public shall be released in the ordinary course just as any public information is released. The information in the Matrix deserves no special "public" status. By the same token, just because we deem certain information "public" does not mean a party must produce it immediately if it does not yet exist. If information does not exist when requested, a response to that effect is appropriate, just as it would be in any other situation.

In no circumstance do we allow permanent confidential treatment of data. All data we find confidential must be released within a window of time, usually 3 years.

The CEC expresses concern that the proposed decision moves the CEC and the CPUC apart in their approach to public information. It is not our intent with this decision to create distance from the CEC. As we stated in R.06-02-013, "we will also consider the [CEC's] 2005 Integrated Energy Policy Report (IEPR) for procurement-related recommendations during this and related rulemakings."87

By the same token, we cannot ignore the fact that § 454.5(g) binds us and not the CEC. We cannot, therefore, take the identical approach to data as the CEC. The CEC is not required by statute to protect IOUs' "market sensitive" information. This distinction - created by statute - is not one we can ignore.

We agree with the CEC, however, that the California Constitution and the Public Records Act are at the foundation of our obligations as a public agency. We have tried to strike an appropriate balance between a statute that requires protection of "market sensitive" information, and our general obligation of openness.

The CEC asserts that the Matrix approach does not require parties to prove that their data are confidential. It is true for data in the Matrix, what the producing party must prove is different than for data not in the Matrix. This is because we are satisfied from the record that certain data must be protected under § 454.5(g). In all cases, however, the producing party must prove that its data deserve confidentiality protection. Further, in no case may a producing party obtain permanent confidential treatment for any data in the Matrix.

Parties make several comments about the ESP and IOU Matrices. Our responses, and changes, are in the following general areas:

a. We retain the 3 year requirement for contract release (ESPs and IOUs), but have the 3-year period begin at the point the contract states energy deliveries will begin. Some long-term contracts last for 20 years. We do not believe it is appropriate to shield information from the public for such an extended period.

b. We disagree with the IOUs that their own contracts with affiliates should not be public. As TURN notes, "[s]uch agreements are subject to heightened public interest because of the potential for self-dealing, which merits a policy of "sunshine" for such transactions."88

c. We agree that Resource Adequacy (planning) information should be protected in the same way as other procurement information. Section 454.5(g) protects planning and procurement information alike so long as the planning information is "submitted in an electrical corporation's proposed procurement plan or [results] from or [is] related to its approved procurement plan. . . ." This definition is not limited only to contracts.

83 AReM/CNE, CAC/EPUC, CARE, CEC, California Large Energy Consumers Association (CLECA), CMTA, DRA, Green Power, IEP, PG&E, SCE, SDG&E and TURN filed opening comments.

84 AReM/CNE, CAC/EPUC, Calpine, IEP, PG&E, SCE, SDG&E and TURN filed reply comments.

85 SCE Reply Brief at 59.

86 PG&E Opening Brief at 36 (citation omitted).

87 R.06-02-013, mimeo., at 3.

88 Id.

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