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N.Y. ALJs "Confident" That Written Agreement With Other State Agencies Concerning Confidential ESCO Info Will Provide "Absolute Protection" For Info

June 30, 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 retail mass market review have adopted a process for other state agencies to execute written agreements to be bound by the PSC's determination of the confidential nature of any protected ESCO materials with regards to any Freedom of Information Law [FOIL] requests submitted to such state agencies for the information, the ALJs stating that they were "confident" that such a process would provide "absolute protection" for the confidential information

Any State agency party wishing to receive protected information in the evidentiary proceedings must execute the written agreement under which defers matters concerning whether the information is subject to FOIL to the PSC.

The ALJs noted: "The key issues presented to us are: (1) whether the State agency parties in these proceedings can be compelled to withhold confidential documents from disclosure in accordance with the Protective Order when a FOIL request is made to those agencies’ RAOs; (2) whether the State agency parties have an obligation to make an independent FOIL determination; and/or (3) whether the State agency parties should refer all FOIL requests seeking Protected Information received by their RAOs to us and/or DPS’s RAO. Neither the parties nor COOG have cited statutory or regulatory authority or case law relevant to these circumstances to support their various positions. While the participating State agency parties do not all share our perspective with regards to the three scenarios that we outlined in our April 18 Ruling in the absence of a written agreement, they all do agree that, if a written agreement were in place, those State agency parties would abide by our FOIL determinations in the scenarios we described, with certain clarifications. Accordingly, notwithstanding Direct Energy’s arguments to the contrary, we are confident that a written agreement executed by appropriate representatives of the State agency parties in this case, in which the agencies agree to abide by the terms of the Protective Order and the substantive FOIL determinations made by us and, where applicable, DPS on appeal when a FOIL request for Protected Information is received by their RAOs, will provide absolute protection for the confidential information to be received by these parties."

"[T]his arrangement ensures consistency in the protection afforded to confidential information and represents an administrative efficiency for the agencies who are parties to these proceedings. Under this paradigm, the substantive determinations are made by DPS, the State agency with the expertise to evaluate the significance of the allegedly confidential information within the context of the ESCO market. Any other arrangement would not provide adequate protection for truly confidential information. Rather, Providing Parties would run the risk that confidential information could be inadvertently released by an agency that lacks the particularized knowledge required to make a confidentiality determination with respect to the technical data the parties are required to produce in these proceedings. In addition, it only makes sense to streamline the process so that both the persons who may request information and the parties whose information is sought are able to place confidence in one determination, made by the agency to which the information originally was submitted, and not be placed in the confusing and uncertain situation where competing determinations are issued by different agencies," the ALJs said

"We also disagree with Direct Energy’s suggestion that the existing Protective Order may not be legally binding upon other State agencies. UIU and NYAG both indicated they have the same understanding as the ALJs with regards to how they must treat Protected Information pursuant to the Protective Order. OGS, the one State agency party who somewhat disagreed with our rationales regarding the three scenarios, nonetheless executed the Protective Agreement on February 27, 2017, thereby requiring OGS to maintain as confidential Protected Information, and agrees that it would be bound by the type of written agreement contemplated herein," the ALJs said

"In light of all of the foregoing, including the agreement of the State agency parties that they will abide by our determinations as to the confidentiality of Protected Information and COOG’s advisory opinion that a written agreement to that effect would be valid and consistent with FOIL, we believe it is in the interest of all parties to clarify the Protective Order and memorialize the agreement of the State agency parties in writing," the ALJs said

"[W]e adopt the process as modified by UIU, whereby the State agency denies the FOIL request, citing to its obligation as a party that is subject to the Protective Order to maintain the information as confidential pending a substantive determination by DPS. The State agency party nevertheless may refer the requestor to DPS for a substantive determination," the ALJs said

The ALJs advised all parties that, "in conformance with our April 19, 2017 Ruling Modifying Protective Order on Temporary Basis, Providing Parties may not provide Protected Information directly to the State agency parties. By an Order to Show Cause dated April 18, 2017, Albany County Supreme Court Justice Ryba stayed that portion of the Secretary’s Determination that required Direct Energy and other parties to provide copies of Protected Information directly to Staff or other State agencies participating in these proceedings. Pending resolution of the Direct Energy matter in Albany County, Providing Parties should continue to refrain from directly providing any Protected Information to the State agency parties that have executed Exhibit 2. Rather, Providing Parties shall submit Protected Information to us and, in turn, we will provide the information to the State agency parties that have executed Exhibit 2."

Parties are required to provide the protected information previously withheld from state agency parties to us within 15 days

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