VI. Burden of Proof
A. Parties' Positions - Burden of Proof
SCE asserts that "information provided by an IOU to the Commission is presumed to be confidential and any party seeking an order for publication of such information bears the burden of affirmatively showing that the information should be made public." SCE concludes that "the burden is on the party seeking disclosure."26
TURN advocates an approach that acknowledges that the party seeking confidentiality always bears the burden of proof, but that also takes into account the existence of the Matrix categories:
[D]ata types determined to be confidential in this docket should presumptively be treated as confidential in future Commission proceedings, but the party claiming confidentiality would bear the burden of demonstrating that the type of information in question was in fact found to be "market sensitive" in this proceeding. Other parties would have the opportunity to dispute that assertion. Establishing such rules of general applicability will help to expedite the many proceedings in which confidentiality issues now arise.
The CEC asserts that "any entity claiming that information they submit to a public agency is a trade secret has the burden of proof to establish that fact."27 Similarly, IEP asserts that "the party that seeks to deny public access to information has the burden of demonstrating that the particular information falls within one of the recognized exceptions to the general presumption that information should be publicly available."28 Green Power Institute (Green Power) also urges the Commission to "[place] the burden of proof of market sensitivity on those who seek confidential status for their submissions, not on those who seek greater public disclosure, and often don't know what is being kept confidential in the first place."29
B. Discussion - Burden of Proof
The party seeking protection of its documents always bears the burden of proof. We agree with TURN, however, that when a party seeks confidentiality for data listed in the Matrix, its burden should 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.
Thus, where an IOU or ESP submits data to the Commission that falls within a category in the appropriate version of the Matrix (which we will refer to collectively unless otherwise noted), it may, if it chooses, mark the data as confidential according to the rules set forth in the Matrix. (Obviously, 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.) The submitting party must file a motion 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.
For example, if an IOU submits data under seal that it contends reveals that IOU's "Utility Bundled Net Open Position for Energy (MWh) by Customer Class" (IOU Matrix, Appendix 1, item VI(D)), it must be prepared to show that that data actually reveal the residual net open position for energy by customer class, that the data cover the time period for confidential treatment the Matrix allows, that the data are not already public, and that the data cannot be produced in a way that shields the confidential information.
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 Items 1-5 above. 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.
26 SCE Opening Brief at 75. See also San Diego Gas & Electric Company (SDG&E) Opening Brief at 19 ("the Commission must protect `583 documents' unless and until it applies a balancing test of public interest in confidentiality against disclosure, determines that the public interest favors disclosure, and issues an order so stating").
27 CEC Opening Brief at 26.
28 IEP Opening Brief at 59.
29 Green Power Opening Brief at 4.
