XIII. Access to ESP Data

The ESPs note that neither § 583 nor § 454.5(g) apply to them, but urge us to use the same or similar rules for them as those we apply to IOUs. We discuss this issue below.

A. Parties' Positions - Access to ESP Data by Non-market Participants

AReM/CNE contend that TURN and Green Power should not have access to their electricity procurement data. They assert that the Commission can assess ESP data without these parties' help, and claim they only need - and perhaps will obtain better information from - aggregated information:

While TURN may be accustomed to looking over staff's shoulder in matters involving the public utilities that the Commission regulates, there simply is no need for TURN or any other private party to play a similar role in connection with staff's verification of ESPs' compliance with the RAR.⁷⁴

AReM makes similar statements about Green Power:

The Green Power Institute ("GPI") and other parties have expressed concern about their ability to monitor ESPs' compliance with the RPS and their progress toward the state's renewable procurement goals without having access to some ESP data. In reality, however, aggregated ESP information would be more useful for such purposes, given that ESPs as a group serve less than 10% of the state's total load and each ESP only serves a fraction of that 10% of load.⁷⁵

TURN opposes any limitation on its ability to have access to ESP data submitted in the RPS or RA contexts:

[It] would be especially egregious to bar [Non-market Participating Parties] NMPPs from reviewing relevant ESP data subject to the terms of a nondisclosure agreement, given that such entities are explicitly granted access to utility confidential data by statute. For purposes of this proceeding, TURN maintains that ESP compliance filings pursuant to Resource Adequacy (RA) and the Renewables Portfolio Standard (RPS) requirement should be available to NMPPs who agree to be bound by a reasonable protective order.⁷⁶

B. Discussion - Access to ESP Data by Non-market Participants

The work of intervenor groups such as TURN and Green Power is invaluable to the Commission. The intervenor compensation statutes and rules acknowledge the importance of such groups to the Commission's decision making process by providing for compensation to them if they make substantial contributions to our decisions. We do not view the work they do as "looking over our shoulders"; rather, it is an integral part of the work we do. Our many intervenor compensation awards to TURN, Green Power and other similar consumer, environmental, community and non-profit groups over the years constitute an acknowledgement of the key role these groups play in contributing to our process.

We therefore reject AReM/CNEs' premise that Commission-only or government-agency-only analysis of ESP (or other) data is better than examination by government plus outside non-market groups. Part of what gives our processes legitimacy is participation from outside groups in our decision making process. With their participation, we consider diverse viewpoints, examine concerns, and develop a fuller record in support of our decisions.

We do not agree that giving non-market participants access to aggregate data is always a full substitute for access to unredacted, detailed information. While there may be ratepayer harm concerns about giving market participants access to the detail (as discussed elsewhere in this decision), there is no basis to restrict non-market participants to receiving only aggregated or redacted information.

Further, AReM points to no instances in which TURN or Green Power (or other non-market participants) abused or neglected data they received in the context of our RA or RPS proceedings. It is common in litigation and in many other contexts for parties to receive information pursuant to a confidentiality agreement or protective order. We do not think it right to assume that parties appearing before us cannot be trusted to abide by the terms of such documents absent evidence of a prior history of violation.

Nor do we view having a point of view about policy as being the same as being a market participant. TURN, Green Power, and other intervenor groups clearly take strong policy positions in our proceeding. That is the point of their participation in many instances. However, taking a position is not the same as being a competitor in the market for electricity or other goods or services. The Legislature acknowledged in enacting § 454.5(g) that there may be differences between market participants and non-market participants, and we find the difference to be important. Where a party (or its membership) does not actually trade or conduct business in the market to which the data at issue pertain, it is not a market participant.

Thus, TURN and Green Power shall not be precluded from access to any ESP (or, for that matter, IOU) data as long as they agree to a protective order or confidentiality agreement where there is a need to protect the data. We reject AReM's request to the contrary.

⁷⁴ AReM/CNE Opening Brief at 38.

⁷⁵ Id. at 39 (emphasis in original).

⁷⁶ TURN Opening Brief at 5.