XIX. Assignment of Proceeding
Dian M. Grueneich is the Assigned Commissioner and Sarah R. Thomas is the assigned Administrative Law Judge in this proceeding.
1. California's electricity markets recently experienced market manipulation.
2. In a market such as the IOU procurement bidding process, one-sided release of information will result in higher, not lower, prices for ratepayers in most situations.
3. AB 57 (the act that promulgated § 454.5(g)), signed in 2002, was conceived in the midst of the state energy crisis.
4. There is no legislative history on the confidentiality provision of § 454.5(g).
5. Section 454.5(g) covers only procurement plans and related contracts and information, including planning information.
6. Information that does not allow market participants to raise the price of electricity an IOU procures is not market sensitive information.
7. The statutory requirements in § 2112 exist regardless of what we tell staff, and it would be cumbersome to issue instructions to staff every time they receive confidential information.
8. The work of intervenor groups who make substantial contributions to our decisions is invaluable to the Commission.
9. Giving non-market participants access to aggregate data is not always a full substitute for access to unredacted, detailed information.
10. Having a point of view about policy is not the same as being a market participant.
11. Quantity data is not always less sensitive (and therefore less deserving of confidentiality protection) than cost data.
1. SB 1488 does not prohibit all use of confidential information.
2. The language "meaningful public participation" in SB 1488 permits some use of confidential data, where there is an overriding statutory requirement of protection.
3. The language "open decision making" in SB 1488 does not preclude any reliance on confidential information, if a statute (such as § 454.5(g)) requires confidentiality, or gives the Commission discretion to keep information confidential.
4. The Bagley-Keene Open Meeting Act does not preclude us from sealing data that statute otherwise requires be confidential.
5. The party seeking protection of its documents always bears the burden of proof.
6. When a party seeks protection for data already contained in the Matrix, its burden should be to prove that the data match the Matrix category, that the information is not already public and that it cannot produce the data in masked or aggregated form. Once it does so, it is entitled to the protection the Matrix provides for that category.
7. Section 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.
8. The due process and confrontation clauses do not preclude use of confidential data.
9. 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.
10. We must strike an appropriate balance in interpreting § 454.5(g). We are a public agency that regulates public utilities, and most of our business must be conducted in the open.
11. Section 454.5(g) does not protect every record connected to procurement; it only relates to "market sensitive" information submitted in procurement plans and related documents.
12. Not all procurement plan and related data are market sensitive under § 454.5(g); a subset of such information meets this definition. Such information must have the potential to materially affect the market price for electricity.
13. It is appropriate and lawful under § 454.5(g) to make distinctions between non-market participants and market participants in determining whether to grant access to confidential data.
14. Market sensitive information under § 454.5(g) is different from trade secrets under Evidence Code § 1060.
15. The confidentiality rules applicable to IOUs and ESPs need not be identical.
16. Neither § 583 nor § 454.5(g) directly apply to ESPs.
17. It is inappropriate to require Commission staff, including DRA, to enter into private contractual agreements with the entities we regulate or that otherwise come before us.
18. The merits of a claim that data are confidential will always depend on the context, and we must have the flexibility to make decisions based on specific facts rather than developing across-the-board rules.
19. Section 399.14(a)(2)(A) provides confidentiality for the results of a competitive solicitation only until the solicitation is complete. This is a very narrow confidentiality requirement that does not change our general conclusion that most RPS information should be public.
20. Section 399.12(c)(3)(B), which provides certain confidentiality protection to ESP end-user retail customer contracts, which confidentiality is provided in the Matrices, has no bearing on our general conclusion in this decision that to the maximum extent possible RPS data should be public.
21. Data about how (and not just whether) ESPs are complying with requirements applicable to them should be publicly filed.
22. It is reasonable to adopt the IOU Matrix and ESP Matrix. We balance the need for open decision making and meaningful public participation with the legitimate needs of parties that come before us for confidential treatment of their data as allowed by law.
23. There may be differences between parties that justify different substantive treatment of data. No type of entity (e.g., IOU or ESP) shall receive greater confidentiality for its data merely because it is such an entity.
IT IS ORDERED that:
1. Where we find that data are market sensitive pursuant to Pub. Util. Code § 454.5(g) or otherwise entitled to confidentiality protection, in most cases, we adopt a window of confidentiality for Investor-Owned Utility (IOU) and Energy Service Provider (ESP) data that protects it for three years into the future, and one year in the past.
2. We adopt the confidentiality conclusions set forth in the IOU Matrix and ESP Matrix attached hereto as Appendices 1 and 2 (collectively Matrix, unless otherwise stated). Where a party seeks confidentiality protection for data contained in the Matrix, its burden shall be to prove that the data match the Matrix category. Once it does so, it is entitled to the protection the Matrix provides for that category. The submitting party must file a motion in accordance with Law and Motion Resolution ALJ-164 or any successor Rule, accompanied with any proposed designation of confidentiality, proving:
1.) That the material it is submitting constitutes a particular type of data listed in the Matrix,
2.) Which category or categories in the Matrix the data correspond to,
3.) That it is complying with the limitations on confidentiality specified in the Matrix for that type of data,
4.) That the information is not already public, and
5.) That the data cannot be aggregated, redacted, summarized, masked or otherwise protected in a way that allows partial disclosure.
3. For data not included in the Matrix, a party seeking confidential treatment shall continue to file a motion pursuant to Law and Motion Resolution ALJ-164 or any successor Rule 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. Boilerplate assertions of a need for confidentiality are not appropriate. Rather, the producing party must cite the legal basis for confidential protection, along with facts showing the consequences of release. It must also show that aggregation, redaction, or other similar methods are inadequate to protect the data.
4. Unless and until we change or repeal General Order (GO) 66-C (or opt to leave it intact upon examination), it shall continue to apply to data not addressed in the Matrix. 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 (and similar topics) will remain in place unless and until we change them.
5. Mere recitation of the conclusory statement that information is a trade secret, or is market sensitive procurement information, is not enough to meet the burden of proving entitlement to confidential treatment.
6. The submitting party need not mark any data as confidential, and even if the Matrix allows confidential treatment, the submitting party need not treat the data as confidential under any circumstances.
7. No data that is already publicly available may be characterized or treated as confidential. Information an IOU has furnished to an affiliated company is publicly available.
8. If another party, or the Commission, questions the appropriateness of the confidential designation (by ruling, motion, letter, or other communication), the submitting party bears the burden of proving (1) that the material it is submitting actually constitutes a particular type of data listed in the Matrix; (2) which category or categories in the Matrix the data correspond to, (3) that it is complying with the limitations on confidentiality specified in the Matrix for that type of data, (4) that the information is not already public, and (5) that the data cannot be aggregated, redacted, summarized, masked or otherwise protected in a way that allows partial disclosure. Once the submitting party meets this burden, the party seeking disclosure of the data (or a change in how it is treated - e.g., disaggregation of data submitted in aggregated form, relief from the terms of a protective order, or other change) may take several steps. It may rebut the claim that the party meets any or all of 1-5 above. It may assert that despite meeting the criteria in Items 1-5, the data should nonetheless be disclosed. The party seeking access to the data shall bear the burden of proof once the party whose data are at issue meets its burden of proving Items 1-5 above.
9. Data that are confidential may be kept from market participants altogether. In all cases, the producing party shall meet its burden of proving that it cannot produce aggregated, partially redacted, summarized or other data that do not reveal the confidential material, and that a protective order is inadequate to protect its data.
10. The process for dealing with confidential documents shall be the same regardless of who claims entitlement to protection. The burden of showing that information meets one of the various statutory protections shall always be on the holder of the data. That party shall always have to make a particularized showing that its data meet the statutory definition, and may not ever simply label the data with the statutory language and rest. The party seeking the information will then have some opportunity to respond, but never bears the initial burden of proof. This general process should apply whether the producing party is an IOU, an ESP, a future Community Choice Aggregator, or any other entity.
11. Intervenor groups that are non-market participants shall not be precluded from access to any ESP or IOU data as long as they agree to a protective order or confidentiality agreement where there is a need to protect the data.
12. This order and the Matrix apply to data regardless of the proceeding in which they are relevant, including the proceedings listed in this decision, successor proceedings, or proceedings not listed in this decision in which the data are relevant.
13. With this decision, we commence Phase Two of this proceeding. Respondents shall, and other parties may, file and serve comment on whether it is appropriate for us to develop the following requirements within 30 days of Commission adoption of this decision:
1.) A motion that simply asserts, without explanation, that the data contain trade secrets or "market sensitive" information will denied as incomplete.
2.) A party whose motion has been denied for violation of item 1 that refiles the motion in substantively the same form may be subject to penalties pursuant to § 2107 at the discretion of the Assigned Commissioner, Assigned Administrative Law Judge (ALJ) or Law and Motion ALJ.
3.) A party seeking confidentiality treatment shall provide in its motion, in text or table form, the following information:
a. Legal basis for asserting confidentiality (e.g., § 454.5(g), trade secret, privilege);
b. If covered by the IOU or ESP Matrix in R.05-06-040, the category/ies into which the data fall, with an explanation of how the data match the category/ies in the Matrix.;
c. Discussion of why the data should be kept under seal;
d. Identification of appropriate procedures short of submitting entire documents under seal or in redacted form, such as partial sealing of documents; partial redaction; aggregation of data to mask individualized, sensitive information; delayed information release (after documents are no longer market sensitive); restriction on personnel with access to documents; use of averages, percentages or annualization of data instead of monthly or hourly data; and issuance of guidelines for parties to follow in producing redacted information (e.g., leaving headings in documents; limiting redactions to figures only; and leaving sufficient information in documents to give other parties notice of what has been redacted).
4.) Parties may not assume that their motions have been granted if the Assigned Commissioner, Assigned ALJ or Law and Motion ALJ do not act on them. The onus shall be on parties to follow up with the Assigned Commissioner, ALJ or Law and Motion ALJ to seek a ruling, if one is not issued within 60 days of filing of the motion.
14. Within 60 days of Commission adoption of this decision, the parties shall (1) meet and confer at least once on the three model protective orders attached as Appendices 4, 5 and 6 to this decision, or any other model, and (2) submit the results of their meet and confer session to the assigned ALJ. The parties shall agree upon portions of a model protective order and nondisclosure agreement if they cannot agree upon a complete model. One party to the meet and confer session shall take responsibility for filing and serving the version(s) that are the results of the meet and confer session(s). The assigned ALJ may give the parties additional procedural direction as needed. We delegate to the assigned ALJ authority to approve a model protective order for use in this and other proceedings.
15. Parties may submit comments addressing the definition of market participants, how they differ from non-market participants, and what types of groups belong in each category. The comments shall be no more than 15 pages and should be filed and serviced within 30 days of issuance of this decision. We delegate to the Assigned Commissioner and ALJ authority to make changes to the Matrix as we gain experience with its use.
This order is effective today.
Dated June 29, 2006, at San Francisco, California.
MICHAEL R. PEEVEY
President
GEOFFREY F. BROWN
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
Commissioners
