3. Model Protective Order and
Non-Disclosure Agreement
3.1. Summary
With this decision, we adopt a Model for use with confidential documents governed by this proceeding. Parties to other proceedings, and in industries other than electric service, may find the Model useful as well, although we will not obligate them to use it. Parties to the RA, Procurement, RPS and offshoot or successor proceedings shall use the Model.2 Further, because the IOU Matrix and ESP Matrix apply to certain energy-related data regardless of where they are used, the Model shall be used in any formal proceeding - or informal context -where such data is furnished to the Commission or third parties.3
The parties have spent a good amount of time negotiating the terms of a Model. The parties continue to have disputes about the Model's contents, especially related to portions of D.06-12-030 that are pending rehearing. If the results of the rehearing require change to the Model, the affected parties may seek modification of this decision at that time.
3.2. Changes to Proposed Model
We discuss changes to the proposed Model in the order in which they appear in the proposal.4
Paragraph 1. Scope. The proposed Model states that it does not address the right of employees of the Commission acting in their official capacities to view protected materials. The law gives employees this right, and it need not be reiterated in the Model, so we omit the provision.
Paragraph 2. Modification. The proposed Model states that it may not be changed or terminated by the Commission unless "all affected parties have been given notice and have had a reasonable opportunity to be heard." Pub. Util. Code § 1708 requires notice and an opportunity to be heard for rescission, alteration or amendment of Commission orders or decisions. The Model need not restate what is already the law, so we omit this provision.
Further, ¶ 2 of the Model states that the "amount of Protected Materials ... may differ from time to time." The reason for this provision eludes us, and we omit it. We omit a similar provision in ¶ 5 of the proposed Model.
Paragraph 3. Definitions.
Subparagraph A. Protected Materials.
The proposed Model defines "Protected Materials" to include materials determined by the Disclosing Party "in good faith" to be confidential. This "good faith" provision misstates D.06-06-066, which requires various steps to protect confidential information. In most cases, an ALJ must rule on a party's claim to confidentiality, and in all cases a party's representation to the Commission is governed by Rule 1.1, which requires good faith. Thus, we omit this provision as superfluous to what the law already requires.
Further, the definition of "Protected Materials" states that confidential material is information covered under, among other provisions, Pub. Util. Code § 583. However, we made clear in D.06-06-066 that § 583 provides no substantive right to confidentiality, but instead prescribes a process to follow in seeking confidential treatment. We thus omit this reference, and any similar reference to § 583 in the Model.
Finally, the Model states it does not apply to public data "unless determined to be protected." However, D.06-06-066 makes clear that all public data is public for Commission purposes. This provision suggests that some public data may not actually be public, and we omit it as inconsistent with D.06-06-066.
Subparagraph F. Reviewing Representatives.
Paragraph F of ¶ 3 requires a "Reviewing Representative" of a non-market participant (NMP) to disclose situations where they are simultaneously representing a market participant (MP) in other proceedings. However, D.06-12-030 allows NMPs access to data without the need to designate Reviewing Representatives, so the paragraph is inconsistent with D.06-12-030.
However, D.06-12-030 does provide that "an attorney or consultant that simultaneously represents market participant(s) and non-market participant(s) may not have access to market sensitive data." D.06-12-020, mimeo., ordering paragraph 6. We substitute this language, which imposes an affirmative duty on such individuals to disclose situations in which they have this potential conflict.
Paragraph 4. Designation of Materials. The proposed Model assumes that material designated as Protected Material shall remain so unless "there is a determination ... changing the designation and a period of 14 calendar days has elapsed without an appeal or other challenge to the determination...." This provision should provide that an ALJ, or Commissioner, is responsible to change the designation, and we amend it to say so. Further, the 14-day provision is in effect an automatic stay of a ruling that material is not confidential. No such stay exists in Commission practice, and we discourage interlocutory appeals from rulings in all cases. Thus, we omit this provision. If in a particular case a party desiring confidentiality wants a stay pending appeal, it must seek it by motion to the assigned ALJ or Law and Motion ALJ in that case.
Paragraph 5. Redaction of Documents. We omit the reference to "magnitude" of data as being confidential. The reason for this provision is not apparent, as noted above.
Paragraph 6. Selection of Reviewing Representatives. This provision requires the party reviewing confidential data to identify "Reviewing Representatives" to the "Division Director," and notes that the Division Director must be involved in meet and confer sessions about the appropriateness of Reviewing Representative designations. However, D.06-12-030 contains no such requirements, and we omit them.
This paragraph also inappropriately requires an ALJ considering the appropriateness of a Reviewing Representative designation to "consider all relevant facts including whether the proposed Reviewing Representative has a need to know the information...." This provision unnecessarily constrains the ALJ as a decision-maker. Any party opposing a Reviewing Representative's designation should be able to make whatever argument it deems necessary, and the ALJ assigned may resolve the issue according to the arguments raised there.
Finally, and perhaps most importantly, ¶ 6 of the Model unnecessarily constrains a party seeking data in its designation of Reviewing Representatives. Decision 06-12-030 allows a Reviewing Representative that meets certain criteria to have access to confidential data. It does not provide for the review process set forth in ¶ 6. We also note there that an attorney or consultant that simultaneously represents market participant(s) and non-market participant(s) may not have access to market sensitive data, as D.06-12-030 holds. D.06-12-030, mimeo., ordering paragraph 6.
The parties discuss, in Footnote 3 to their proposed Model, what evidence the Reviewing Representative must provide the disclosing party in order to qualify as a Reviewing Representative. We do not require particular documentation, although a resume or curriculum vitae is reasonable evidence of a lack of conflicts and should be the default in most cases. Regardless of the mechanism of proof, a Reviewing Representative has a duty to disclose any potential conflict that puts him/her in violation of D.06-12-030.
Paragraph 8. Maintaining Confidentiality of Protected Materials. Paragraph 8 requires a Reviewing Representative to oppose disclosure of another party's confidential materials if sought in discovery in another proceeding. No such provision appears in D.06-12-030, and we find it unduly binds Reviewing Representatives. However, we retain the provision requiring the Reviewing Representative to immediately notify the disclosing party that a third party seeks the material. The disclosing party may then take any necessary action to protect its data.
Paragraph 12. Access and Use by Governmental Agencies. This paragraph deals with California Energy Commission (CEC) access to records first obtained by the Commission. The parties are concerned that, given the different statutory obligations of the two agencies, material that the Commission protects as confidential may be disclosed by the CEC. While we ordinarily have no power to tell another agency what to do, here, the CEC was a party to this proceeding, and weighed in on the proposed language. Thus, we have agreement from the CEC on some provisions.
The provision in Paragraph 12 generally allows the Commission to release confidential material to the CEC only pursuant to the terms of an "Interagency Confidentiality Agreement" in which the CEC agrees to abide by the Commission-afforded confidentiality protections. The CEC states in footnote 8 of the proposed Model that it supports the language in Paragraph 12:
Paragraph 12 allows the CEC to obtain and use protected information to fulfill its statutory duties, and the CEC in doing so may not release any studies or papers that either directly reveal the data or allow the data to be calculated. The CEC supports that language.
The CEC is concerned, however, about the interplay between Paragraph 12 and paragraph 14, which we discuss in our coverage of that paragraph below and resolve in the CEC's favor.
Paragraph 13. California Public Records Act (CPRA) Requests. This paragraph contains requirements that the Commission notify parties if it receives Public Records Act requests. We delete this provision in its entirety. The Commission will abide by its ordinary practice, consistent with the CPRA, but should not assume any additional burdens, or impose such burdens on third parties who exercise their rights to access information under the CPRA.
Paragraph 14. Derivative Materials. This paragraph creates a rebuttable presumption that any study that incorporates, describes or otherwise employs Protected Materials, or any model that relies on such materials, is also protected. Nothing in D.06-06-066 or D.06-12-030 creates this presumption.
Indeed, both decisions recognize that a party seeking confidential treatment must first attest that it cannot aggregate its data to mask the confidential material. If such aggregation is possible, the data must be disclosed publicly.
In the same way, a model that uses individual data as inputs may create outputs that are aggregated or otherwise mask individualized data. Thus, rather than creating a presumption that model outputs are confidential, if anything D.06-06-066 and D.06-12-030 create the opposite presumption - that aggregate data is not confidential.
While we do not preclude a party from seeking confidentiality for studies or model outputs, we decline to create a rebuttable presumption that such data are confidential, and therefore remove Paragraph 14 from the proposed Model.
We note that Paragraph 14 caused the CEC some concern which qualified its agreement to use an "Interagency Confidentiality Agreement" for data furnished it by the Commission. Now that we remove Paragraph 14 in its entirety, we consider the CEC's concerns to be resolved.
Paragraph 15. Dispute Resolution. Paragraph 15 requires the parties to the Model to resolve disputes by motion. We add a meet and confer requirement so that the parties first attempt to resolve disputes among themselves. We require that all parties to law and motion disputes first meet and confer. In addition, Paragraph 15 states that "the parties and Commission Staff reserve the right to seek additional administrative or judicial remedies after the Assigned ALJ or the Law and Motion ALJ has made a ruling regarding the dispute." We remove this paragraph, as it suggests that there may be an automatic appeal within the Commission of law and motion type rulings. In fact, such appeals are strongly discouraged. We also do not need to reserve the right for Commission Staff. Thus, we remove the quoted provision.
With these modifications, we approve the proposed Model.
2 These proceedings are numbered as follows: R.08-01-025, R.05-12-013, and R.04-04-003 (RA); R.06-02-013 (Procurement); and R.06-05-027, R.06-02-012, and R.04-04-026 (RPS).
3 For example, several other energy proceedings, including the California Solar Initiative Rulemaking (R.06-03-004), the Demand Response Rulemaking (R.07-01-041), and the Energy Efficiency Rulemaking (R.06-04-010), and their successor proceedings, may use the same documents as those covered by D.06-06-066. Parties to those proceedings using those documents should comply with the orders in this proceeding.
4 The Model we adopt appears as Appendix A. The parties' proposed Model appears as Appendix D.
