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New York ALJs Adopt Protective Order In Retail Market Evidentiary Review Proceeding

February 20, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The presiding ALJs in the New York PSC's evidentiary review of the retail energy mass market have adopted a protective order.

The protective order allows all parties to, subject to the order, receive confidential information that is part of discovery responses. Prior to the issuance of the protective order, only certain parties, such as Department of Public Service Staff and the state's Utility Intervention Unit, had access to such confidential responses.

Parties that execute a Protective Agreement will be entitled to access information that would otherwise be exempt from disclosure. That access will be subject to the terms and conditions of the Protective Order and will be authorized solely for purposes of the party’s participation in the instant proceeding. The party representative who executes the Protection Agreement will be held responsible for ensuring that party’s full compliance with the terms of the Protective Order, the ALJs' ruling provides

"The Protective Order underscores our roles in making an independent determination as to eligibility for protection, under 16 NYCRR Part 6, of any material entered into the record, even if the confidentiality claim is uncontested. It also requires preparation of redacted discovery responses to send to parties not entitled access to protected information, where the redactions would not render the document meaningless," the ALJs said.

"If there is a request for public disclosure or a challenge to the claim of exemption from disclosure under FOIL or if the Administrative Law Judges in their discretion wishes to rule on the confidentiality claim, the Providing Party will be given an opportunity to provide a more detailed brief justifying its claim before the Administrative Law Judges rule. Any party may object to the designation of particular documents or other materials as Protected Information. A party objecting to the designation of documents or materials as Protected Information must notify the Providing Party, other parties to these proceedings entitled to access to the information in question, and the Administrative Law Judges of its objection. Upon such an objection, within seven days the Providing Party must submit the documents or materials in question, with its comprehensive brief justifying the claim for confidential treatment, to the Administrative Law Judges in conformance with the provisions of 16 NYCRR §6-1.4(a)(1) and (a)(2) or as otherwise directed by the Administrative Law Judges. It is expected that the Administrative Law Judges will interpret exemptions from public disclosure in a narrow fashion, as required by law," the protective order provides

The protective order provides that competitors shall not have access to protected information under the protective order, except that such competitor may retain an Outside Consultant which can view the protected information. An Outside Consultant is defined as a (i) consultant, (ii) outside counsel, or (iii) other expert who is not an employee or agent of a competitor and is retained to assist the receiving party in its participation in the proceedings.

"The following parties are entitled to access to Protected Information: any party that (a) has requested the information or would normally be entitled to be served with it under the Commission’s Rules of Procedure; (b) has acknowledged in writing its familiarity with the terms of this Protective Order by executing and filing with the Secretary to the Commission a copy of the protective agreement (Protective Agreement) set forth in Exhibit 1; and (c) is not a party that would benefit from access to the Protected Information by reason of being a competitor or having an adverse business interest to the Providing Party (except as provided in Paragraph 6 below). Parties may be found to be prohibited from accessing Protected Information for competitive reasons. Trial Staff of the Department of Public Service (Staff), the Utility Intervention Unit of the New York Department of State (UIU) and New York State Attorney General (NYAG) are subject to and familiar with the provisions of Public Service Law §15, or Public Officers Law §74, or both. These statutes provide for disciplinary action, fine, or prosecution for the disclosure of confidential information. Therefore, Staff, the UIU and NYAG are not required to execute the Protective Agreement in this Protective Order to have access to Protected Information, but are bound by the terms of this Protective Order. Parties receiving Protected Information under this Protective Order are 'Receiving Parties,'" the protective order provides

"If a party has been denied access to Protected Information by reason of being a competitor or having an adverse business interest to the Providing Party, that party’s Outside Consultant may nevertheless be granted access to Protected Information of a competitor for use in these proceedings under the following circumstances. The party that has been denied access to Protected Information shall: (a) provide the Outside Consultant with a copy of this Protective Order; (b) obtain an executed Protective Agreement from the Outside Consultant, including an affirmation that the Outside Consultant will not share Protected Information with the party denied access to the Protected Information, or any other person, firm, or corporation to whom disclosure is not permitted under this Protective Order; (c) file a copy of the executed Protective Agreement with the Secretary to the Commission; and (d) request that the Providing Party give the Protected Information to the Outside Consultant. The Providing Party may not unreasonably withhold such information. The Providing Party has five (5) business days following service of the Protective Agreement, to object to the Outside Consultant’s receipt of Protected Information. If the Providing Party objects to giving any or all of its Protected Information to the Outside Consultant, the presiding Administrative Law Judges will establish procedures to resolve the objection expeditiously," the protective order provides

See the protective order and associated ruling here

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