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New York PSC Staff Says Interlocutory Review of ALJs' Ruling On ESCO Data Response Confidentiality Not Needed To Protect Confidential Status

March 30, 2017

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

New York Department of Public Service Staff opposed a request from Direct Energy for interlocutory review of a ruling by two New York Administrative Law Judges concerning confidential protection for ESCOs' data responses made during the New York PSC's evidentiary review of the mass market, as Staff said the current procedures and statute will offer confidential protection to the responses

Direct Energy had said that the ALJs' ruling and process ignored certain provisions under New York’s Freedom of Information Law statute that are required for confidential treatment to be granted, and would therefore expose competitively sensitive pricing information and other confidential business records of ESCOs to FOIL disclosure

DPS Staff said that, "Staff understands Direct’s concerns regarding the need to protect from production under the Freedom of Information Law (FOIL) its and other energy service companies (ESCOs) proprietary information concerning its business, products, and pricing which, if exposed, may allow its competitors in the competitive energy supply market to potentially exploit that information to the detriment of Direct’s business."

"However, after review of Direct’s March 20th Interlocutory Appeal and the applicable law, Staff has determined that Direct has misconstrued the interplay among POL §89, POL §74, and Public Service Law (PSL) §15," DPS Staff said.

"POL §87(2)(d) exempts from public access under FOIL documents submitted to an agency that are trade secrets or submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which disclosed would cause substantial injury to the competitive position of the subject enterprise. Under POL §89(5)(a)(1), the person or entity submitting confidential information to request that such records be exempt from disclosure. Pursuant to §89(5)(a)(3) and 16 NYCRR §6-1.4(a)(3), the agency must not disclose such information, excepting it from disclosure, until a court has ruled on the availability of such exemption and maintain it apart from all other records," DPS Staff said.

"Once a request for exemption from disclosure is made under POL §89(5)(a)(1), such information cannot be disclosed under FOIL because POL §74(3)(c) provides that no officer or employee of an agency may disclose such information and PSL §15 provides that any employee or agent of the Department of Public Service that divulges confidential information, except as may be directed by the Commission, court, judge, or law shall be guilty of a misdemeanor. Since both the POL and PSL generally prohibit disclosure of such information, the exception from disclosure under POL §87(2)(a), where a state or federal statute prohibits disclosure, would prevent the Department and the other state agencies who hold such information from producing it pursuant to a FOIL request for documents. Furthermore, POL §87(2)(d), exempts from disclosure records that are trade secrets or submitted to an agency by a commercial enterprise. Because of the prohibitions to disclosure in POL §87(2)(a) and POL §87(2)(d), the trade secret and commercially sensitive material would not be subject to disclosure under FOIL," DPS Staff said.

"Regarding Direct’s concerns that the protective order is insufficient because the process it establishes requires that Staff be provided copies of confidential documents and not the Records Access Officer (RAO), Staff has established protocols to ensure that confidential material is keep separate from other Commission and Department documents and protected. These protocols also ensure that confidential material may only be accessed by the Staff assigned to these proceedings," DPS Staff said.

DPS Staff also opposed a stay sought by Direct Energy pending a ruling on Direct's request for interlocutory review

The state's Utility Intervention Unit also said that the current procedures would protect the confidentiality of data.

"Still, to clarify the issues raised by Direct Energy’s Appeal and develop the record in this proceeding, UIU requested an advisory opinion from the Committee on Open Government regarding the application of disclosure rules under Article 6 of the Public Officers Law (the Freedom of Information Law, hereinafter referred to as 'FOIL') to State agencies that are participating as parties in Public Service Commission proceedings. The advisory opinion concludes that a state agency party can agree to abide by the Department of Public Service records access determinations through a written agreement, as DOS [Department of State, which houses UIU] did when it agreed to be bound by the terms of the Protective Order issued in this proceeding. Thus, UIU and other state agency parties can keep Protected Information received pursuant to the Protective Order secure from public disclosure under FOIL. There is no need to enact a stay on discovery as Direct Energy requested and it is essential that the discovery process continue to proceed as usual because parties have to comply with a direct testimony deadline of May 8, 2017," UIU said

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