N.Y. ALJ Issues Guidance For Filing of Confidential ESCO Discovery Responses, Including Responses To Staff Information Requests Directed To ESCOs Not Parties To Proceeding

A New York PSC Administrative Law Judge has issued guidance concerning the filing of confidential discovery responses by ESCOs in the PSC's evidentiary review of the retail energy mass markets, including guidance directed to ESCOs who are not party to the case, but who have been served with information requests issued by PSC Staff

The ALJ noted that Department of Public Service Staff issued information requests on February 2, 2017 directed to ESCOs. Some of those ESCOs are parties to Case 15-M-0127, Case 12-M-0476, or Case 98-M-1343 (the evidentiary review proceedings), and some are not parties to any of those cases.

In guidance directed only to those ESCOs who are not parties to any of the three cases mentioned above, the ALJ said, if the ESCO plans to respond to Staff’s information requests and is not a party to Case 15-M-0127, 12-M-0476 or 98-M-1343, responses need only be provided to Staff counsel. For non-parties, "Your responses should not be filed with the PSC Secretary; rather they should just be emailed to Staff Counsel. If your response contains information that you wish to be maintained as confidential by the Department of Public Service, you should direct your response to the information request with a request for confidential treatment to the DPS Records Access Officer, Donna Giliberto, an attorney in the Department’s Office of General Counsel," the ALJ said

For non-parties, "Any document that is alleged to contain confidential material that you seek to have maintained as confidential by the Department must not be provided to any other person, including Staff Counsel. Instead, Ms. Giliberto [DPS Records Access Officer, Donna Giliberto] will arrange for the information to be released to Staff on a need-to-know basis, in a manner that allows her to keep track of who has access to the document."

In contrast, for ESCOs who are parties to the evidentiary review proceedings, the ALJ further clarified discovery responses and requests for confidential treatment.

The ALJ reiterated that a protective order will be issued "soon."

Until such protective order is issued, the ALJ directed parties to please follow the instructions for discovery responses provided in a February 8 ruling (see details here) as further clarified by the ALJ

Specifically, the ALJ said that for ESCOs who are parties to the proceeding who are seeking confidential treatment must, by separate email, "provide the confidential documents, labeled as confidential, only to me, counsel for Department of Public Service (DPS) Staff and counsel for the Utility Intervention Unit (UIU). DPS Staff and UIU are required to treat the information as confidential information and, as I described in my ruling, are subject to disciplinary action, fine or prosecution for the disclosure of confidential information. So long as a party complies with these directives, particularly, submitting a statement addressing the factors stated in 16 NYCRR §6-1.3(b)(2), the allegedly confidential information will be accorded confidential status and excepted from disclosure and maintained apart by the agency from other records until 15 days after entitlement to confidential status has been finally denied or such further time as ordered by a court of competent jurisdiction."

In accompanying guidelines for such confidential filings developed by the Records Access Officer (RAO), the guidelines note that, "blanket-redacted documents (completely or substantially blacked-out documents) filed with the Secretary are not acceptable. Only those portions of the document for which confidentiality has been sought may be redacted."

See the ALJ's guidance and related materials for more details

Guidance/FAQs for non-party ESCOs

Guidance/FAQs for party ESCOs

RAO Confidential Filing Guidelines

Request for Confidentiality Sample Letter