XII. The Confidentiality Rules Applicable to IOUs and ESPs Need Not Be Identical
The parties are divided on whether we should devise identical rules for IOUs and ESPs when it comes to confidentiality. Some would require identical treatment, others acknowledge that the confidentiality statutes do not all refer to IOUs and ESPs together but nonetheless find it practical to treat the two groups the same, and still others contend ESPs should be given more protection than IOUs because they allegedly face greater competitive pressures. We find that the confidentiality rules applicable to IOUs and ESPs (or other IOU competitors) need not be identical.
A. Parties' Positions on Whether IOUs and ESPs Should Be Treated Identically
AReM and the CEC recommend that the Commission avoid adopting rules that would require an identical result for ESPs and the IOUs and take into account that the two types of entities operate differently in the energy market. In addition to advocating at least for equal treatment of IOUs and ESPs, AReM goes further and seeks greater protection for ESP data in some instances:
ESP data should in some instances be given a higher degree of protection or should not be requested from regulatory bodies at all. ESPs do not seek cost recovery from the Commission, because ESPs recover their costs through negotiated contracts with customers. IOUs, however, present complicated cases before the Commission wherein they request recovery of costs associated with their utility function. That process requires disclosure so that the Commission and the public can satisfy themselves that the request is just and reasonable as a matter of fulfilling their regulatory role. ESPs, however, are submitting information to satisfy a legislative requirement to fulfill RA and RPS requirements, for which the Commission is the body charged with verifying and enforcing compliance.66
AReM concedes that ESPs are not covered by § 583 or § 454.5(g), but ask us to apply their protections to ESPs anyway. "Previously the Commission has directed its staff to treat confidential ESP information as if Section 583 applied."67 Acknowledging the difficulties in our making the misdemeanor provision in § 583 applicable to non-public-utilities, AReM instead suggests that we "expressly [notify] staff that they are subject to the provisions of Section 2112 with regard to their handling of confidential ESP data through the use of protective orders and the requirement to execute associated non-disclosure agreements."68
The CEC agrees generally with AReM that if any entities deserve greater protection than the other, it is ESPs over IOUs. "Thus, release of identical information may have harmful economic consequences for ESPs, but not for utilities."69
TURN takes the middle road:
Since PU Code Sections 454.5(g) and 583 are not applicable to ESPs, arguably those entities are not entitled to same protections as public utility electrical corporations. However, given the policy arguments in favor of affording ESPs some degree of confidential treatment, TURN believes that the Commission would be justified in providing ESPs with the same types of protections afforded to the utilities. It would appear to turn the statutory scheme on its head, however, to afford ESPs greater protections than electric corporations. . . .70
B. Discussion - The Confidentiality Rules Applicable to IOUs and ESPs Need Not Be Idential
1. Process For Claiming Confidentiality Should be the Same for All Entities
The process for dealing with confidential documents should 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.
A party seeking confidentiality - regardless of its regulatory status - must always bear the burden of showing legal entitlement to confidentiality. No such party may successfully claim its data is confidential without a particularized showing. When the data appear in the Matrix (Appendices 1 or 2), the party seeking confidential treatment must show that the data match the categories in the Matrix, are not public, and cannot be aggregated or masked, as discussed elsewhere in this decision. When the data are not in the Matrix, the party must show entitlement to protection under the trade secret law, the Evidence Code provisions regarding attorney-client and other privileges, confidentiality statutes such as § 454.5(g), GO 66-C as currently written, or other provision of law.
TURN and AReM raise an important point - that neither § 583 nor § 454.5(g) directly apply to ESPs. Section 583 is limited to information furnished to the Commission by a "public utility." Section 454.5(g) only relates to "electrical corporations" who submit procurement plans. No one asserts that ESPs are public utilities, and AReM asserts that they are not electrical corporations either.71 While there may be instances in which the latter point is incorrect, we will assume for the sake of argument here that the ESPs before us meet neither the § 583 nor the § 454.5(g) definition. While we cannot write ESPs into either statute,72 and therefore decline to treat ESPs as if they were covered by statute, we also believe it is within our discretion to require that all parties that come before us follow the same procedure in seeking confidentiality designations for their documents.
We disagree with AReM, however, that we should notify Commission staff that they must execute non-disclosure agreements and agree to be bound by § 2112 when receiving ESP data. 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.
As for § 2112, which creates a misdemeanor and penalties for violation, among other things, of Commission orders, we do not need to instruct staff to obey the law. 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.
2. Substantive Confidentiality Determinations Will Depend on Producing Party's Market Position
We agree with AReM, however, that there may be differences between parties that justify different substantive treatment of data. We do not necessarily agree with AReM's assertion that ESPs as a group deserve greater protection than IOUs in all instances. Thus, our finding that we need not treat all entities identically should not be construed to suggest that we think ESPs in all situations deserve more protection for their data than IOUs. There may well be instances, for example, where ratepayer harm from release of IOU data could be far greater than if equivalent data from an ESP were released, given just the size differences of the two types of entities. There should be room for differently-situated entities to make different claims about which of their data are and are not confidential, and parties opposing such claims to do the same. As the CEC states, "whether a particular piece of information derives economic value from not being generally known to the public or other persons may depend on the market position of the owner of the information."73
We cannot anticipate in advance every situation in which such differences might arise, but we are also reluctant to create a rule requiring that every entity's documents must receive identical confidentiality treatment. One business may be able to argue that its customer list is not publicly known. Another may not be able to make such a showing, since its customers are well publicized. We would find a rule requiring identical treatment of all contracts too constraining. 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.
This is why it is especially important that parties seeking confidential treatment bear the burden of proving entitlement to such treatment. Without evidence from such parties about the nature of the data and the harm that would result from release, we cannot adequately assess confidentiality claims.
66 AReM Opening Brief at 22.
67 Id. at 11.
68 Id. at 12.
69 CEC Opening Brief at 11.
70 TURN Opening Brief at 5.
71 AReM/CNE Opening Brief at 10 n.11 & 11 n.12.
72 Section 583, for example, makes it a crime for Commission staff to disclose information furnished by public utilities that the Commission has deemed confidential. We cannot apply this criminal provision to data from non-public utilities because we do not have the authority to create new crimes.
73 CEC Opening Brief at 11.
