NY PSC Denies Appeal Of ALJs' Ruling Concerning State Agency Access To Confidential ESCO Info

The Secretary of the New York PSC denied an appeal from Direct Energy concerning the manner in which other state agencies, who are parties to the evidentiary proceeding reviewing the retail energy mass markets, may access confidential responses from ESCOs to various discovery requests issued in the case

Direct has argued that providing such information to other state agencies in the manner adopted by the PSC is inconsistent with relevant statutes and would expose such information to Freedom of Information Law (FOIL) requests on such other state agencies, and risk disclosure of such information

The PSC denied the appeal, finding that an Agreement signed by the state agencies to abide by PSC FOIL determinations addresses this concern

"Direct Energy's appeal is denied on the merits. The ALJs correctly concluded that they may distribute Direct Energy's information to state agency parties to these proceedings under the Protective Agreement (Agreement) and an Order to Show Cause entered by Albany County Supreme Court. The ALJs appropriately applied 16 NYCRR §6-1.4, which expressly allows ALJs to distribute information to parties to a proceeding under a protective order. Contrary to Direct Energy's claims, the ALJs have not proposed disclosure of exempt information to other agency parties, in violation of POL § 89(5)(a)(3). The ALJs also met FOIL'S requirements for safeguarding any information exempt from disclosure," the PSC Secretary said in the ruling

"Furthermore, in requiring State parties to execute the Agreement, the ALJs have left no doubt that providing information to these parties is consistent with FOIL and regulations implementing FOIL. The Agreement ensures one consistent FOIL determination rather than several potentially competing determinations. The Committee on Open Government (COOG) has issued an advisory opinion that suggests that state agencies can agree to be bound by other agencies' FOIL determinations. COOG suggested that the Agreement be in writing and specify which records are the subject of the Agreement. ALJs crafted the Agreement to comply with these guidelines. The Agreement comports with COOG's guidelines and it is consistent with FOIL," the PSC Secretary said in the ruling

"Direct Energy's claim that the ALJs' actions were ultra vires because they do not cite any provision of FOIL that would constitute a substantive FOIL determination in the Agreement or the associated Protective Order is without merit. Both the Agreement and the associated Protective Order are procedural devices that implement FOIL; they do not constitute a substantive FOIL determination. This is evident in both the Agreement and the associated Protective Order; both expressly state that they are not substantive FOIL determinations. Direct Energy observes that POL § 87(2)(d) provides substantial protection, which exempts from disclosure 'trade secrets' or confidential commercial information, 'which if disclosed would cause substantial injury to the competitive position of the subject enterprise.' Direct Energy asserts that POL § 89(5)(a) implements that section, which protects information submitted pursuant to POL § 87(2)(d). The Clarifying Ruling and the Agreement give full effect to the procedural mechanism for exemption contained in POL § 89(5)(a) to the extent that Direct Energy seeks to invoke the protections of those statutes. As such, the Clarifying Ruling and the Agreement are fully consistent with FOIL, and therefore Direct Energy's appeal is rejected," the PSC Secretary said in the ruling

"[T]he Agreement and the Clarifying Ruling allow Direct Energy to claim exemption from disclosure for information that is allegedly confidential because of POL §§ 87(2)(d) and 89(5) and to shield such from disclosure to the public and thereby allowing it to participate in the Commission proceeding," the PSC Secretary said in the ruling

The PSC also denied the appeal on procedural grounds, finding that the appeal was untimely