N.Y. ALJs Issue Guidance Addressing Concern Protected Information Submitted in Retail Mass Market Evidentiary Review Will Be Subject To Freedom Of Information Law

The presiding ALJs in the New York PSC's evidentiary review of the retail energy mass markets have issued further guidance addressing certain parties concerns that previously outlined procedures concerning protected information submitted as part of discovery are not entitled to confidential protection under the state's Freedom of Information Law (FOIL) absent additional processes and findings.

As summarized by the ALJs, "These parties suggested that, for Protected Information to be secure from disclosure pursuant to FOIL, the Protected Information provided to the state agency parties must be filed with the Records Access Officer (RAO) for each agency and accompanied by a separate claim and justification for confidentiality addressed to that agency rather than served on the agency representative in these proceedings. Some parties have gone so far as to suggest that, if such a process is not followed, the information has no status as 'Protected Information' and that the State agency party will be powerless to protect such information from disclosure in the face of a FOIL request. Parties also assert that the RAO for each agency possessing the information must make an independent determination of whether the information is subject to disclosure pursuant to FOIL."

However, the ALJs said that, "The State agencies are receiving Protected Information only by virtue of being parties in these proceedings."

The ALJs noted that POL §74(3)(c) provides, "No officer or employee of a state agency, member of the legislature or legislative employee should disclose confidential information acquired by him or her in the course of his or her official duties nor use such information to further his or her personal interests."

"In their role as a party, they must accept the information as confidential under our protective order and subject to any ruling we make pursuant to FOIL on the merits of a confidentiality claim. 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," the ALJs said

"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 said

"Therefore, Providing Parties are not required to submit Protected Information to the agencies’ RAOs for that information to be protected. However, for the convenience of any agency party, that party may ask that Providing Parties deliver Protected Information to that agency’s RAO for housekeeping purposes," the ALJs said

"We, therefore, see no basis to modify the processes adopted in our Ruling and Protective Order regarding filing of and FOIL determinations for information which a Providing Party has identified as Protected Information," the ALJs said