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New York ALJs Deny NEM Motion To Compel DPS Staff To Share Data From Information Requests Served On Non-Party ESCOs

July 25, 2017

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

The presiding New York ALJs have denied a motion to compel filed by the National Energy Marketers Association (NEMA) which had sought to require Department of Public Service Staff to share with NEM information responses submitted to Staff by ESCOs who are not parties to the New York PSC's evidentiary proceeding which is reviewing the retail energy mass market

On April 14, 2017, NEM propounded IR-1 on DPS Staff, requesting, "any and all data or information that DPS Staff has been provided directly or indirectly in connection with these proceedings by parties or non-parties including but not limited to all responses to DPS Information Requests served in these proceedings."

As previously reported, Staff has sought various rate and financial information from ESCOs who are not parties to the case

"The purpose of the request was to ensure that, as a party to these proceedings, NEM had access to the same data and information that DPS was reviewing in preparing for the submission and presentation of evidence in these proceedings," NEM had said in its motion to compel

NEM had argued that the non-party ESCO data is relevant and material to the proceedings and that allowing Staff, but not other parties, access to the data would be, "unbalanced and inconsistent with due process."

DPS Staff opposed NEM's request, arguing that the non-party ESCO information to which it has access was filed voluntarily by those ESCOs with the Department of Public Service (DPS) Records Access Officer (RAO) as confidential trade secret information, and not with the ALJs under the Protective Order. Accordingly, Staff posits, PSL §15 and POL §74 prohibit it from divulging that information to anyone, including parties to the proceedings, absent a directive from the Commission, a court or judge.

DPS Staff additionally contended that its obligation to maintain the confidentiality of the non-party ESCO data flows from the statutory requirements of PSL §15 and POL §87(2)(d), which cannot be abrogated by the Commission’s procedural rules. Staff contends that the Commission previously has determined that the existence of a protective order in a proceeding does not allow parties to obtain confidential information submitted by a non-party to the RAO.

Several non-party ESCOs, including those owned by NRG, Just Energy, and Calpine, had opposed NEM's request to the extent that NEM sought the confidential data of non-parties

The ALJs denied NEM's motion to compel

"As for non-party responses, we agree with Staff and the NRG ESCOs that, because the Protective Order adopted in these proceedings is applicable only to parties to the proceedings, only information submitted by a party to the ALJs, with a request for confidentiality, qualifies as Protected Information. In contrast, information submitted by a non-party to DPS’s RAO with a request for confidentiality does not qualify as Protected Information and, therefore, cannot be protected under the Protective Order. Instead, non-party information that is alleged to be confidential, such as the non-party ESCO information sought by NEMA, is protected from disclosure pursuant to FOIL and DPS’s implementing regulations. Therefore, Staff is prohibited by PSL §15 and POL §§74 and 89(5) from disclosing the non-party ESCO information to NEMA or any other party. If NEMA desires access to that information, it must direct a request for disclosure of such to the DPS RAO," the ALJs said

"Finally, we are unpersuaded by NEMA’s claim that its procedural due process rights in these proceedings will be violated if we do not require Staff to disclose the non-party ESCO information. We recognize that parties to these proceedings generally must fully disclose to each other, upon request, all material and relevant information. Notwithstanding that general obligation, we agree with Staff that the Commission’s regulations governing discovery cannot abrogate Staff’s statutory obligations under PSL §15 and POL §§74 and 89(5) to maintain the confidentiality of information to which Staff has access, and for which the providing entity (here a non-party ESCO) has exercised its right to protect its submitted information under a claim of confidentiality pursuant to POL §89(5)," the ALJs said

"Moreover, neither the Commission’s procedural rules nor procedural due process require that the parties have equal access to confidential information. Rather, '[i]t is well settled that procedural due process in the context of an agency determination requires that the agency provide an opportunity to be heard in a meaningful manner at a meaningful time.' Notably, no party, other than Staff, currently has access to the allegedly confidential, non-party ESCO information sought by NEMA. Under the circumstances presented, in which NEMA and all parties are being provided an opportunity to substantially appear and be heard in these proceedings, we find no violation of NEMA’s procedural due process rights," the ALJs said

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