X. Access to Market Sensitive Information

A. Parties' Positions - Access to Market Sensitive Information

IEP makes the claim most directly that § 454.5(g) provides no distinction for confidentiality purposes between non-market and market participants. IEP asserts that the language providing DRA and other consumer groups who are non-market participants access to confidential documents

· does not exclude market participants from those parties who are "provided access to this information under confidentiality procedures authorized by the commission,"

· does not require the Commission to withhold market sensitive information from market participants (however defined); and

· does not restrict the Commission's discretion to develop "appropriate" procedures to address confidentiality or its discretion to employ those procedures to provide participants in procurement proceedings or other members of the public (in addition to DRA and consumer groups) with the same access to confidential materials that the entities listed in the statute will receive.

On the other side of the equation, PG&E claims that, "[b]y referring to `non-market participants,' the Commission expressly excluded `market participants,' who are the only possible opposite class." PG&E goes on to assert that, "If the Legislature had intended to give market participants access to market sensitive information `under confidentiality procedures authorized by the commission,' the Legislature would have said so. Because the Legislature has not empowered the Commission to grant access to market participants even under `authorized' confidentiality procedures, the Commission cannot give market participants such access."⁵⁷

California Manufacturers and Technology Association (CMTA) claims it has been treated erroneously as a market participant in the past, even though it is a trade association. It notes that SCE has claimed that organizations such as CMTA should be considered market participants because their membership includes entities such as Duke Energy, Calpine Corporation, Constellation Energy and similar generator companies. We defer this specific issue for further briefing.

B. Discussion - Access to Market Sensitive Information

Section 454.5(g) specifically requires the Commission to provide access to confidential market sensitive information submitted in electric procurement plan and/or resulting from or related to an approved procurement plan to our staff and also to non-market participant consumer groups who agree to subject themselves to our confidentiality procedures. As discussed herein, by this decision we believe various procedures for ensuring confidentiality of market sensitive information may include provision of such information under a protective order or confidentiality agreement, and in some instances, release of such information to the public in general, in aggregate, redacted or masked form.

Our confidentiality process must take into account the 2000-2002 energy crisis in California, and the fact that the Legislature recognizes a need to protect the confidential nature of market sensitive information and has mandated us to ensure such information remains confidential. We will define, by a separate decision, the terms "market participant," and "non-market participant,"as well as any related terms, e.g. "reviewing representatives." Thus, we will determine a more precise definition of the terms upon receipt of additional briefing, as noted in the ordering paragraphs below.

⁵⁷ PG&E Opening Brief at 11.