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Hearing Examiner Orders Releases of Retail Supplier Trade Secrets, Product Info; Suppliers Appeal

November 11, 2015

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Copyright 2010-15 EnergyChoiceMatters.com
Reporting by Karen Abbott • kabbott@energychoicematters.com

Several retail natural gas suppliers have appealed to the Public Utilities Commission of Ohio an Ohio hearing examiner's ruling which the suppliers said denied in part the motions for protective orders requested by various suppliers addressing market-sensitive information the suppliers provided to PUCO Staff for use by Staff in preparing a report on Dominion East Ohio's commercial default supply program

The hearing examiner's ruling, "requires the participating CRNGS providers to submit revised data sheets which will reveal certain information that the CRNGS providers previously redacted because it is confidential," the suppliers said

Among the information not granted confidential treatment is:

• Number and salaries of full-time and part-time employees

• Supplier descriptions of their products offered

• Value-added services, including promotions being offered, unless a supplier meets a burden showing that such info is not publicly available

"This trade secret information has such great financial value and competitive value to the individual CRNGS provider that warrants maintaining its secrecy," the suppliers said

PUCO had previously required the information to be filed to review the impacts from Dominion East Ohio's merchant exit

Suppliers called the disclosure of such information the, "tip of the iceberg," which would chill market participation across the state

"[D]isclosure of this information will provide OPAE and any other member of public who asks with multitudes of trade secret information about individual CRNGS providers participating in the natural gas choice market in Ohio. OPAE will also be able to disclose the information. The ruling on this interlocutory appeal will have a much greater impact on the competitive marketplace in Ohio than just the DEO program. Disclosure of the confidential information covered in the Entry will have a chilling effect on CRNGS providers submitting information to the Staff for fear that competitors could make similar public records requests to discover what the competitor pays its employees, learn the fully array of products and services/offers, and glean enormous amounts of details about the marketing strategy of the competitor. A denial of this interlocutory appeal will result in irreparable harm to the competitive market in Ohio," suppliers said

"Since CRNGS providers are not public utilities and the pricing and marketing of their natural gas commodity is a competitive activity in Ohio, the Staff would not have access to the detailed information, save for the Commission’s order in this proceeding. Suppliers provided their confidential information with the understanding that the Commission Staff would not make public their individual information. The information covered by the November 2nd Entry is in fact the individual CRNGS providers’ information dis-aggregated, and the ruling would reveal each individual CRNGS provider’s number of employees, salaries, products and services/offers to the public. Such information is proprietary and competitively sensitive," suppliers said

Regarding employee counts, the suppliers said that, "It demonstrates the size and scale of the CRNGS provider’s operations in Ohio, which should be a trade secret. Depending on how the individual CRNGS provider submitted its information to the Staff, it may also show individual employees’ compensation. Absent this Entry, the number of full- and part-time employees and their compensation is not generally known now, nor readily ascertainable by others who would obtain economic value from it."

Regarding product descriptions, the suppliers said, "The specific Suppliers’ product descriptions are of enormous value to the individual members and the compilation of the product descriptions will disclose the individual CRNGS provider’s entire line of products in Ohio. This information shows which state-specific products are most successful and which are not, and whether products were widespread or offered on a limited basis. Unlike the aggregated information, which will list the type, number and use of various products made available and which is helpful to judge the contribution of CRNGS providers under the new plan, disclosing on a company basis the products reveals the business model of each individual CRNGS provider. That type of disclosure harms market participants and makes Ohio a less attractive place to try new products. CRNGS providers expend considerable effort and money to develop their products and services which are intended to result in market advantage - it is the lifeblood of their businesses. A compilation of the product descriptions unequivocally demonstrates the CRNGS provider’s market strategy, which is plainly a trade secret in this competitive market and which undoubtedly would have economic value to competitors in the market."

"Like the product descriptions, the value-added services including promotional offers ('services/offers') are of enormous value to the individual CRNGS providers. The compilation of those services/offers will also disclose the specific CRNGS provider’s marketing strategy in Ohio. This information shows which value-added services are most successful and which are not, and whether they were widespread or offered on a limited basis. It will disclose the full array of promotions as well. This compiled information further discloses the provider’s decisions about how, when, where, and why to support and promote various products in particular markets. As a result, a compilation of the value-added services, including promotional offers, unequivocally demonstrates the CRNGS provider’s market strategy, which is plainly a trade secret in this competitive market," the suppliers said

Case No. 12-1842-GA-EXM

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