Energy Choice
                            

Matters

New York ALJs Rule RESA Consultant Shall Have Access To "Unmasked" ESCO Pricing Data Filed By Utilities (Identifies Specific ESCOs)

ALJs Also Say Utilities May Share Unmasked Data Specific To An Individual ESCO With Such Individual ESCO

June 9, 2017

Email This Story
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 markets have ruled that an outside consultant retained by the Retail Energy Supply Association (RESA) shall receive copies of the "keys" required to identify the Energy Service Companies (ESCOs) and their customers whose identities currently are anonymized in confidential responses filed by the utilities in response to discovery requests made by Department of Public Service Staff.

RESA had sought access to keys that would enable its outside consultant to ascertain the currently anonymized ESCO identities in the joint utilities’ respective responses to certain discovery requests made by Staff. The keys reveal the identities of ESCOs associated with aggregated ESCO-specific customer data, such as the ESCO’s pricing information, load served, and number of accounts the ESCO has in a particular service area.

In seeking access to the keys, RESA acknowledged that it is requesting information for which parties have requested confidential treatment under FOIL and, therefore, is protected by the Protective Order adopted in these proceedings. Accordingly, RESA requested that the keys be provided only to its outside consultant, subject to the provisions of the Protective Order adopted in the case. According to RESA, the keys are necessary for it to prepare its case, and RESA said that prohibiting its consultant from having access to the keys puts RESA at a significant disadvantage relative to the other parties who have received the keys. RESA argued that the information is critical to its formation of a defense against any argument in these proceedings that mass-market customers served by ESCOs would have fared better in the past few years if they had stayed with default service.

The Joint Utilities primarily were concerned that the Protective Order does not permit them to release the keys to RESA, since RESA’s members could benefit competitively if they obtained the confidential pricing, load and customer information of other ESCOs. Specifically, the joint utilities cited Paragraph 4 of the Protective Order, which states that only parties who do, "not benefit from access to Protected Information by reason of being a competitor or having an adverse business interest to the Providing Party" are entitled to receive confidential, competitively sensitive information in these proceedings.

The ALJs granted RESA's request for the keys

"The Protective Order was adopted in these proceedings because we anticipated that information alleged to be confidential and competitively valuable likely would be the subject of discovery requests in these proceedings. It is now alleged that RESA and its members could benefit competitively if they were given access to the ESCO and customer information protected by the keys. The Protective Order therefore prohibits RESA and its members from accessing this Protected Information. However, the Protective Order also provides that an outside consultant for a party, such as RESA, that is barred from accessing Protected Information due to its alleged competitive position may have access to the Protected Information, so long as certain criteria are met. Specifically, the outside consultant must execute the Protective Agreement, and affirm that he or she '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 th[e] Protective Order," the ALJs noted

The ALJs noted that RESA’s counsel and its outside consultant have executed the Protective Agreement and affirmed that they will abide by the terms of the Protective Order. "Accordingly, they are eligible to receive Protected Information in accordance with the Protective Order," the ALJs said

"The Joint Utilities properly acknowledge their obligations to maintain the confidentiality of the Protected Information on behalf of the ESCOs within their respective service territories. We do not find, however, that the utilities have offered a reasonable basis for us to conclude that disclosure of the ESCO keys to RESA’s counsel or outside consultant must be withheld. Indeed, Paragraph 6 of the Protective Order was included to address this very situation, wherein a party with a competitive interest in these proceedings may be precluded from accessing confidential information, but nonetheless requires access to the information in order to prepare a defense. It is for that reason that the Protective Order permits disclosure to a third-party consultant, under the terms set forth therein," the ALJs said

"As RESA contends, in these proceedings it is imperative that the parties are allowed access to information they require to prepare their testimony and exhibits. To prevent RESA’s outside consultant from analyzing data that is available to Staff and the Joint Utilities could disadvantage RESA in its preparation of its case. For example, without access to the keys, RESA’s consultant may not be able to track an ESCO across the utilities’ service territories, thereby hindering RESA’s ability to analyze an ESCO’s statewide activity," the ALJs said

The ALJs ordered that, within fifteen (15) days, the joint utilities shall provide RESA’s counsel of record and RESA’s outside consultant with the keys that were submitted with the joint utilities’ respective responses to Staff’s discovery requests (DPS-Utility 1 through DPS-Utilities 6).

"However, RESA is cautioned that we expect its counsel and consultant to strictly adhere to the terms of the Protective Order. Under no circumstances are RESA’s counsel and [its outside consultant] permitted to share any information discovered through the use of the keys with RESA, its individual ESCO members, or anyone else. In addition, we encourage [RESA's outside consultant] and RESA’s counsel to review, and ensure compliance with, Paragraphs 12 through 14 of the Protective Order, which govern the manner in which Protected Information must be safeguarded from disclosure," the ALJs said

The ALJs also noted that certain of the joint utilities have expressed their willingness to reveal to an individual ESCO that ESCO’s own anonymized information contained in the utility’s own responses to Staff’s discovery requests. "However, some utilities apparently are concerned that such voluntary disclosure by them to the ESCOs would violate the terms of the Protective Order and/or the Commission’s regulations," the ALJs noted

"We therefore clarify that, to the extent that any utility has released, or agrees to release, confidential information specific to a particular ESCO to that ESCO upon its request, such disclosure will not be considered by us to be a violation of the Protective Order or the Commission’s regulations governing the disclosure of confidential and trade secret material. Because each individual ESCO has a great interest in protecting its own confidential, commercially sensitive information from public disclosure, there appears to be no rational basis to deny an ESCO access to data regarding its own operations," the ALJs ruled

ADVERTISEMENT
NEW Jobs on RetailEnergyJobs.com:
• NEW! -- Senior Pricing & Structuring Analyst -- Retail Supplier -- Houston
• NEW! -- Operations Supervisor -- Retail Supplier -- Houston
• NEW! -- Pricing Analyst -- Retail Supplier -- Houston
• NEW! -- Director, Regulatory Compliance -- Retail Supplier -- Houston
• NEW! -- Sales & Marketing Manager -- Retail Supplier
• NEW! -- Pit Crew Analyst - Pricing, Contracting & Service Guru -- DFW / Irving
• NEW! -- Sr. Energy Consultant
• NEW! -- Manager of Regulatory Affairs -- Retail Supplier
• NEW! -- Sales Support Specialist Energy Solutions -- Retail Supplier
• NEW! -- Paralegal, Regulatory Affairs -- Retail Supplier -- Houston
• NEW! -- EDI Transactions Manager -- Retail Supplier -- Houston