XVII. Phase Two
With this decision, we also commence Phase Two of this proceeding by posing a series of questions. Respondents shall, and other parties may, file and serve comments responsive to these questions within 30 days of Commission adoption of this decision.
A. Consequences For Excessive Confidentiality Designations
We intend for parties to treat confidentiality designations with care. They must think about whether they are simply asking for confidentiality as a rubber stamp, or whether evidence truly needs protection. Thus, the requirement that parties show that their data meet the criteria we establish here must have teeth. If there are no consequences of overstating the need for confidentiality, we suspect parties will simply err on the side of asking that too many documents be held under seal.
In order to ensure that parties make an honest effort to prove that documents meet the various legal definitions for confidentiality (e.g., for trade secrets or "market sensitive" information), we will no longer allow parties to submit data under seal accompanied by boilerplate motions for leave to file under seal that do not address the specific documents at issue. We seek comment on whether it is appropriate for us to adopt the following requirements:
1. A motion that simply asserts, without explanation, that the data contain trade secrets or "market sensitive" information will denied as incomplete.
2. A party whose motion has been denied for violation of item 1 that refiles the motion in substantively the same form may be subject to penalties pursuant to § 2107 at the discretion of the Assigned Commissioner, Assigned ALJ or Law and Motion ALJ.
3. A party seeking confidentiality treatment shall provide in its motion, in text or table form, the following information:
a. Legal basis for asserting confidentiality (e.g., § 454.5(g), trade secret, privilege);
b. If covered by the IOU or ESP Matrix in R.05-06-040, the category/ies into which the data fall, with an explanation of how the data match the category/ies in the Matrix;
c. Discussion of why the data should be kept under seal;
d. Identification of appropriate procedures short of submitting entire documents under seal or in redacted form, such as partial sealing of documents; partial redaction; aggregation of data to mask individualized, sensitive information; delayed information release (after documents are no longer market sensitive); restriction on personnel with access to documents; use of averages, percentages or annualization of data instead of monthly or hourly data; and issuance of guidelines for parties to follow in producing redacted information (e.g., leaving headings in documents; limiting redactions to figures only; and leaving sufficient information in documents to give other parties notice of what has been redacted).
4. Parties may not assume that their motions have been granted if the Assigned Commissioner, Assigned ALJ or Law and Motion ALJ do not act on them. The onus shall be on parties to follow up with the Assigned Commissioner, ALJ or Law and Motion ALJ to seek a ruling, if one is not issued within 60 days of filing of the motion.
B. Model Protective Order
The OIR initiating this proceeding asked parties to weigh in on whether the Commission should adopt a model protective order or nondisclosure agreement for use in future confidentiality disputes. The ALJ also required the parties to meet and confer in an attempt to reach consensus on the terms of such a model protective order. In their reply briefs after the hearing of this case, the parties explained that they had been unable to reach agreement on a form of order.
The parties proposed several different possible models. First, TURN supported the protective order and nondisclosure agreement attached hereto as Appendix 4, which related only to non-market participating parties' access to utility information via discovery prior to the adoption a formal protective order in a proceeding. CAC/EPUC supported the TURN model.
Second, the IOUs proposed a model based on an ALJ ruling issued May 9, 2005 in R.04-04-003/R.04-04-025, attached hereto as Appendix 5, and available on the Internet at http://www.cpuc.ca.gov/word_pdf/RULINGS/46194.doc. TURN proposed a variation of this model in its reply comments.
Third, CMTA supported a model Protective Order used by the FERC, attached hereto as Appendix 6, and available on the Internet at http://www.ferc.gov/legal/admin-lit/model-protective-order.pdf. As an alternative to the TURN model, which CAC/EPUC supported, CAC/EPUC proposed that the Commission use the FERC model.
Given the parties' disagreements about the terms of the model protective order, we are not prepared to select a model at this time. We prefer that the parties meet and confer again in light of the decisions we make here, and determine whether they can narrow the choices, or at least agree on parts of a model protective order for our further consideration.
Therefore, as part of Phase Two of this proceeding, within 60 days of this decision, the parties shall 1) meet and confer at least once on the three model protective orders and nondisclosure agreements cited above (and any other model they prefer), and 2) submit the results of their meet and confer session to the assigned ALJ. The parties shall agree upon portions of a model protective order and nondisclosure agreement if they cannot agree upon a complete model. One party to the meet and confer session shall take responsibility for filing and serving the version(s) that are the results of the meet and confer session(s). The assigned ALJ may give the parties additional procedural direction as needed. We delegate to the ALJ responsibility for approving a model protective order.
