Motion for A Protective Order

Pursuant to Pub. Util. Code §§ 454.5(g) and 583, PG&E seeks the issuance of a protective order that sets forth the conditions under which non-market participants to this proceeding may obtain access to (a) confidential, market-sensitive, proprietary procurement information, and (b) computer models, databases, programs and input data set formats that PG&E used in its testimony in support of the application. PG&E points out that similar protective orders were issued in R.01-10-024, and in A.03-02-002. A proposed protective order, with three appendices, was attached to PG&E's motion. No one filed any comments on PG&E's motion for a protective order.

The protective order that PG&E submitted in A.03-02-002 was patterned after the May 1, 2002 protective order that was adopted in R.01-10-024. (See A.03-02-002, April 16, 2003 ALJ Ruling.) However, that May 1, 2002 protective order was subsequently modified by the April 4, 2003 ruling in R.01-10-024.¹ The April 4, 2003 ruling modified the May 1, 2002 protective order to allow the Independent System Operator to have access to confidential information other than pricing information. The ruling also revised the scope of material that should be considered confidential.

In a January 14, 2004 ALJ ruling in R.01-10-024, the May 20, 2003 modified protective order was amended again.² Among other changes, the Amended Protective Order allows attorneys and/or outside experts, who are not competitive duty personnel for their clients, to gain access to protected materials.

The Amended Protective Order reflects the tension between "open and transparent procurement processes" and the need "to protect legitimate confidential, proprietary, commercially sensitive and trade secret information of companies participating in RFPs." (R.01-10-024, December 1, 2003 Ruling, pp. 7-8.) The Amended Protective Order reflects what an ALJ with the Federal Energy Regulatory Commission (FERC) did in one of the FERC proceedings which addressed the fall-out from the California energy crisis of 2000-2001. The FERC ALJ accommodated these competing interests by allowing "attorneys and outside experts retained by any participant to the proceeding ... the opportunity to review Protected Materials so long as they executed Non-Disclosure Certificates and were not `Competitive Duty Personnel.'" (R.01-10-024, December 1, 2003 Ruling, p. 10.)

Recently, in D.04-01-050, the decision in the procurement rulemaking proceeding, the Commission addressed the subject of confidentiality and the need for meaningful public participation. The Commission stated:

"Since issuance of the April 4 [2003] Ruling, parties have continued to voice concern over the amount of information that is shielded from public review. We also recognize that the Legislature, particularly the Senate Energy, Utilities and Communications Committee, has taken a strong interest in this subject and has pressed this Commission to expand the amount of utility resource planning and procurement data that is made publicly available, and to ensure that the public has meaningful access to the Commission's decision-making. In light of this ongoing concern and in an effort to promote the widest possible dialogue on utility planning matters in California, we will again revisit our approach to the treatment of confidential information in our new Procurement OIR. Our intent is to broaden the scope of information embedded in utility resource plans that can be made public." (D.04-01-050, p. 178.)

The Commission went on to state:

"We are frustrated with our experience from last year over the amount of information that has been redacted in utility filings seeking preapproval of certain procurement transactions. The breadth of the redactions we see in utility filings is incompatible with open decision-making. While there may be at times an inherent tension between open decision-making and the protection of confidential information, it is possible to balance these competing goals in the public interest. During the Commission's consideration of procurement issues both in this Docket and in related advice letter filings over the past year, some believe we have tilted this balance more toward the `protection of confidential information' than is required by the public interest. Indeed, based on this experience, we consider the current point on the continuum between these competing goals to have become unworkable, and are resolved to move much closer to the `open decision-making' end of the continuum." (D.04-01-050, pp. 179-180.)

PG&E's proposed protective order has been compared to the various protective orders issued in R.01-10-024. Although PG&E's proposed protective order is substantially the same as the original May 1, 2002 protective order issued in R.01-10-024, the protective order in that proceeding has changed over time. As a result, PG&E's proposed protective order is more restrictive than what is currently being used in R.01-10-024.

Currently, the Amended Protective Order in R.01-10-024 allows an attorney and an expert or employee of an expert, who is retained by a market participating party, and who is not engaged in, or does not provide legal or expert consulting services on the purchase, sale, or marketing of energy or capacity, or the bidding on or purchasing of power plants or consulting on such matters, to have access to protected materials after executing a non-disclosure certificate. PG&E's proposed protective order in this proceeding should be changed to reflect the same kind of access that was granted to certain persons retained by a market participating party in R.01-10-024. Accordingly, changes have been made to numbered paragraphs 3.h., 4, 6, 9, 11, 12, 14, 15, 18, 22, and 23 of PG&E's proposed protective order.³ The revisions to PG&E's proposed protective order are reflected in the protective order that is attached to this ruling as Attachment A.

PG&E's motion for a protective order, as changed by the revisions contained in Attachment A, is granted. The revised protective order, Attachment A, is adopted as the protective order that shall apply in this proceeding.

IT IS RULED that:

1. The August 1, 2003 and February 17, 2004 motions of Pacific Gas and Electric Company (PG&E) for authority to file and maintain confidential, commercially sensitive, proprietary information under seal is granted.

a. The unredacted testimony, which was submitted on August 1, 2003, in support of PG&E's 2004 ERRA and the review of its procurement activities from January 1, 2003, through May 31, 2003, shall remain sealed.

b. The unredacted updated testimony, which was submitted on February 17, 2004, in support of PG&E's 2004 ERRA as amended, shall remain sealed.

2. The August 1, 2003 motion of PG&E for a protective order, as changed by the revisions which are reflected in Attachment A of this ruling, is granted.

3. Attachment A of this ruling is adopted as the protective order that shall apply to this proceeding.

Dated February 19, 2004, at San Francisco, California.

		/s/ JOHN S. WONG
		John S. Wong Administrative Law Judge

¹ The April 4, 2003 ruling directed the utilities to prepare "a final version of the modified Protective Order consistent with this Ruling." The utilities filed the modified protective order on April 14, 2003. In the May 20, 2003 ruling in R.01-10-024, the modified protective order was adopted.

² See R.01-10-024, ALJ Rulings dated December 1, 2003, and January 14, 2004.

³ Minor changes have also been made to numbered paragraphs 1, 3, 8, 13, 20, and 26.