VI. "Reviewing Representatives": Access
by Staff Within a Market participant

A. Parties' Positions

IEP asserts that even within a market participant, we should focus on the roles and functions of staff to determine who may have access to confidential data. Only staff actually involved in (or who supervise) buying/selling/exchanging electricity should be restricted from access to confidential data. Other staff within the market participant should have access, IEP contends. IEP cites its experience at the Federal Energy Regulatory Commission (FERC), where "reviewing representatives" designated by parties may have access to confidential information even if other employees or representatives of their organizations are not entitled to access. The "reviewing representatives" with access to confidential data would not include persons whose scope of employment involves:

the marketing of energy, the direct supervision of any employee or employees whose duties include the marketing of energy, the provision of consulting service to any persons whose duties include the marketing of energy, or the direct supervision of any employee or employees whose duties include the marketing of energy.¹⁷

SDG&E argues that IEP's "micro level" approach, which would examine the function of a person within an organization, would cause "numerous, protracted disputes ... as the credentials of each reviewing representative are debated."¹⁸ Even if certain people within a market participant do not directly trade in the market, they would "have a strong incentive to gain a competitive advantage for their clients/employers."¹⁹

B. Discussion

We will allow a narrow exception to our general holding that market participants may not have access to market sensitive data under § 454.5(g). This exception allows market participants to designate representatives (outside experts, consultants or attorneys) as long as such representatives have no involvement in energy marketing and related activities and work in a different firm from, or are ethically screened from, such representatives. This narrow exception will allow some data access to all parties, including market participants, under conditions designed to ensure that market sensitive data are not used to affect energy prices to the detriment of ratepayers.

Market participants may designate as Reviewing Representatives outside experts, consultants or attorneys who meet the following criteria:

1. Reviewing Representatives may not currently be engaged, directly or indirectly, in (a) the purchase, sale, or marketing of electrical energy or capacity or natural gas (or the direct supervision of any employee(s) whose duties include such activities), (b) the bidding on or purchasing of power plants (or the direct supervision of any employee(s) whose duties include such activities), or (c) consulting with or advising others in connection with any activity set forth in subdivisions (a) or (b) above (or the direct supervision of any employee(s) whose duties include such activities or consulting).

2. Reviewing Representatives may not be employees of market participants.

3. Reviewing Representatives shall use market sensitive data only for the purpose of participating in a formal Commission proceeding.

4. Reviewing Representatives shall execute a non-disclosure agreement and be subject to a protective order which precludes the Representatives from disclosing market sensitive information to anyone who is a market participant or who is an employee or an agent of a market participant.

¹⁷ IEP opening comments at 3. See also CMTA opening comments at 2 ("even as to the utilities' competitors, there is no reason to include all personnel from a company within the definition of `market participant.'").

¹⁸ SDG&E reply comments at 5-6.

¹⁹ Id. at 6.