X. Section 454.5(g) Distinguishes Between Market Participants and Non-market Participants

Several parties claim that § 454.5(g) does not permit the Commission or other parties to provide different access to data depending on whether they compete in the market for electricity. We find these assertions to lack merit. Section 454.5(g) states that, "the Office of Ratepayer Advocates (DRA) and other consumer groups that are non-market participants shall be provided access to [procurement] information under confidentiality procedures authorized by the Commission." The statute makes no such allowance for market participants who compete with electric utilities. We discuss this issue in the following paragraphs.

A. Parties' Positions - Non-market vs. Market Participants Under § 454.5(g)

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 - Non-market vs. Market Participants Under § 454.5(g)

The reference in § 454.5(g) granting access to DRA and other consumer groups who are non-market participants is evidence of a legislative intent to distinguish between non-market participants and market participants. We agree with PG&E that the Legislature could have easily said that market participants should have the same access to data as non-market participants if that had been its intent. Moreover, § 454.5(g)'s key purpose is to address protection for "market sensitive" information, and it makes sense in that context that the Legislature would be sensitive to the risks utilities face if participants in that market have access to their data. The Legislature's concern about protecting the confidentiality of "market sensitive" information logically includes restrictions on access to data for those who operate in that "market."

Thus, 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. We cannot anticipate in advance every distinction we might draw, and thus do not adopt a specific process here. Nor do we agree with PG&E that market participants may never have access to "market sensitive" information. There may be instances, for example, where it is appropriate to release such information in aggregate, redacted, or masked form.

Our decision here finds that § 454.5(g) does not preclude the Commission (or parties) from making distinctions between non-market and market participants in granting or denying access to "market sensitive" data. We will determine a more precise definition of the two terms upon receipt of additional briefing, as noted in the ordering paragraphs below.

⁵⁷ PG&E Opening Brief at 11.