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NY Court Issues Stay of PSC Protective Order Requirements Related To Submission Of ESCO Confidential Data To DPS Staff, State Agencies In Mass Market Review

ESCOs Must Still Submit Info To ALJs, Who Will Provide Protected Info To DPS Staff Counsel

April 20, 2017

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

A New York State Supreme Court has issued a stay of certain requirements of the PSC Secretary’s determination regarding application of a protective order and submission of confidential documents to Department of Public Service Staff and other state agencies in the New York PSC's retail mass markets review, but the presiding ALJs informed parties that the ALJs would provide any protected info to DPS Staff counsel, as such provision is not impacted by the stay.

In February rulings, the presiding ALJs had ruled that parties submitting confidential data to state agencies could not insist on providing such information to the agency’s records access officer (RAO), which, under certain provisions of the FOIL statute, is a condition for receiving confidential treatment. The ALJs explained, however, that various state agencies are receiving the ESCOs' Protected Information only by virtue of being parties in these proceedings. The ALJs said that, as such, state agencies are required to treat Protected Information as confidential pursuant to POL §74(3)(c) and protect the information from public disclosure pending the administrative law judges’ determination regarding the confidentiality claim pursuant to FOIL. "State agencies receiving requests for disclosure pursuant to FOIL will be restricted to find that Protected Information provided to that agency in connection with these proceedings is exempt from disclosure pursuant to POL §§74(3)(c) and 87(2)(a); there is no need for an independent determination regarding the status of the information as exempt from disclosure under any other subsection of POL §87(2) because the State parties are precluded from disclosing the information under these statutes," the ALJs had said

Direct Energy had appealed the ALJs' ruling to the PSC Secretary, arguing that the process was inconsistent with certain statutory requirements that must be met to receive an exemption from FOIL disclosure (such as submission to the RAO), and Direct Energy said that the ALJs' initial ruling could expose ESCO's proprietary data to public disclosure.

As more fully discussed in our prior story (click here for details), the PSC Secretary in an April 4 determination generally found the ALJs had properly applied the Freedom of Information Law (FOIL) and related statutes in their rulings governing the provision of confidential discovery responses, especially with respect to the provision of information to Department of Public Service Staff.

In the April 4 determination, the PSC Secretary generally denied Direct's appeal (remanding one discrete issue not related to the provision of info to DPS Staff), and had said, "The ALJs properly determined that protected information need not be filed with the Department of Public Service (DPS) Records Access Officer(RAO) in order to be exempt from disclosure under the Freedom of Information Law. The ruling correctly applied 16 NYCRR § 6-1.4, under which ALJs effectively act as the DPS RAO [Records Access Officer], by administering FOIL in Public Service Commission (PSC) evidentiary hearings."

According to the ALJs, Direct Energy filed papers in State Supreme Court commencing an Article 78 Proceeding based on the PSC Secretary’s April 4, 2017 Determination of Appeal on Measures to Preserve Confidentiality. In addition, Direct Energy filed a Motion for a Temporary Restraining Order and Preliminary Injunction seeking to stay enforcement of a portion of the Secretary’s Determination.

According to the ALJs, Justice Ryba signed an Order to Show Cause that requires modification of the processes in the Protective Order. Pursuant to the Order to Show Cause, the portion of the Secretary’s Determination that requires Direct Energy and other parties to provide copies of Protected Information directly to Staff or other State Agencies participating in these proceedings is stayed pending a hearing scheduled for June 16, 2017.

"Nothing in the Order to Show Cause however, precludes the ALJs from providing Protected Information to other persons, including Department of Public Service Staff, pursuant to FOIL and the Commission regulations implementing FOIL," the ALJs said

"Until further notice, Providing Parties should not provide Protected Information directly to Staff and the State Agency Intervening Parties. Protected Information must be provided directly to the ALJs and we will provide the Protected Information to Staff counsel," the ALJs said

"As we discussed in our Ruling Regarding Procedures for Protecting Information Obtained by State Agency Intervenors, we continue to review the appropriate processes for providing State Agency Intervenor Parties with Protected Information. As stated above, until further notice, Providing Parties should not provide Protected Information to State Agency Intervenor Parties until we further address this matter," the ALJs said

"Providing Parties should continue to provide Protected Information to the other Receiving Parties in conformance with the Protective Order and our subsequent rulings," the ALJs said

Although not stressed by the ALJs, the Court's stay would ostensibly only apply to parties to the evidentiary mass market proceedings, and not DPS Staff's interrogatories served on ESCOs outside of the evidentiary proceeding

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