RESA Seeks For Its Outside Consultants To Have Access To "Keys" Unmasking ESCO Data Reported By New York Utilities In PSC's Retail Mass Market Review

The Retail Energy Supply Association filed a motion with the New York PSC asking the ALJs presiding over the PSC's retail mass market review to compel the joint utilities to provide RESA’s outside consultants, subject to the pertinent confidentiality protections of the Protective Order issued in the proceedings, copies of the keys to the identities of Energy Service Companies that are masked in the joint utilities' responses to Department of Public Service Staff Information Requests.

"RESA does not dispute that these keys ('ESCO Keys') deserve Protected Information Status under the Protective Order. However, RESA has a legitimate interest in obtaining the ESCO Keys to be able to prepare its case, and denying such access to its outside consultants would place RESA at a significant disadvantage relative to other parties whose consultants have received the ESCO Keys. The Joint Utilities’ confidentiality concerns will be fully addressed by the Protective Order," RESA said

The data includes comparative bill information listed by specific ESCO. The unmasked data identifying each ESCO's results by name can be seen by parties such as DPS Staff, the Utility Intervention Unit, and Public Utility Law Project

The joint utilities claim that RESA’s Outside Consultants should be denied access to the ESCO Keys in order to prevent ESCOs from circumventing the Protective Order and gaining access to competitively sensitive information

RESA, however, noted that comprehensive measures adopted in the case that RESA’s Outside Consultants are bound to observe to safeguard the confidentiality of Protected Information. Those measures include prohibitions on sharing Protected Information with any other person, firm, or corporation to whom disclosure is not permitted under the Protective Order; restrictions on duplication or reproduction of Protected Information; requirements to keep Protected Information under lock and key and electronically under password protection or encryption; and requirements to redact Protected Information from any publicly filed documents or testimony.

"Adherence to these measures by RESA’s Outside Consultants will ensure that individual ESCO members of RESA have no opportunity to obtain access to ESCO Keys. What the Joint Utilities ignore is that the Protective Order is specifically set up to facilitate the sharing of these kinds of Protected Information amongst the parties," RESA said

"[W]hile RESA appreciates the Joint Utilities’ concern for the confidentiality of individually identifiable ESCO data, the Protective Order, coupled with ESCO disincentives to breaching confidentiality, fully address that concern," RESA said

RESA further said that its Outside Consultants need to be able to review the unmasked data in order to fairly participate in the proceeding

"[A]part from RESA’s interest in having its Outside Consultants be able to fully analyze the comparative bill data in the same manner as other parties’ consultants, RESA needs this information to have a fair opportunity to defend its case in the hearings. Procedural fairness requires that RESA have access to the same information as other parties to the proceedings that do not necessarily share its interests in keeping the retail markets open to ESCO participation. RESA cannot predict how DPS Staff, PULP or UIU will use the individually identifiable ESCO information in formulating their strategy or developing their cases. Indeed, without seeing the information, RESA may never know how those parties use it to their advantage. RESA is certain, however, that those parties will have an unfair advantage if they have information that RESA’s Outside Consultants do not," RESA said