BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Order Instituting Rulemaking to Improve Public Access to Public Records Pursuant to the California Public Records Act ) ) ) Rulemaking 14-11-001 (Filed November 6, 2014) OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905- G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D Patricia A. Cirucci Javier C. Rivera Carol Schmid-Frazee Attorneys for SOUTHERN CALIFORNIA EDISON CO. 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770 Telephone: 626-302-6544 Facsimile: 626-302-6997 E-mail: [email protected]Steven D. Patrick Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2954 Facsimile: (213) 629-9620 E-mail: [email protected]Jackson D. McNeill Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2977 Facsimile: (213) 629-9620 E-mail: [email protected]Kyle O. Stephens Attorney for SOUTHWEST GAS CORPORATION 5241 Spring Mountain Road Las Vegas, Nevada 89150-0002 Telephone: 702-876-7293 Facsimile: 702-252-7283 E-mail: [email protected]Dated: December 22, 2014
Transcript
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA
Order Instituting Rulemaking to Improve Public Access to Public Records Pursuant to the California Public Records Act
)))
Rulemaking 14-11-001 (Filed November 6, 2014)
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY
(U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS &
ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
Patricia A. Cirucci Javier C. Rivera Carol Schmid-Frazee Attorneys for SOUTHERN CALIFORNIA EDISON CO. 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770 Telephone: 626-302-6544 Facsimile: 626-302-6997 E-mail: [email protected]
Steven D. Patrick Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2954 Facsimile: (213) 629-9620 E-mail: [email protected]
Jackson D. McNeill Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2977 Facsimile: (213) 629-9620 E-mail: [email protected]
Kyle O. Stephens Attorney for SOUTHWEST GAS CORPORATION 5241 Spring Mountain Road Las Vegas, Nevada 89150-0002 Telephone: 702-876-7293 Facsimile: 702-252-7283 E-mail: [email protected]
Dated: December 22, 2014
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC
COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF CONTENTS
Section Title Page
-i-
I. INTRODUCTION ....................................................................................................................................3
II. LEGAL ARGUMENT ............................................................................................................................6
A. The Commission’s Proposed Approach Harms The Public—And Customers—By Inadequately Protecting Confidential Information ....................................6
B. Proposed GO 66-D Is Inconsistent with the California Public Records Act and Public Utilities Code Section 583 ...............................................................................11
1. Proposed GO 66-D Improperly Shifts The Presumption That All Utility Records Submitted to the Commission Are Public Information ............................................................................................................12
2. Proposed GO 66-D Improperly Delegates Authority to the Public Records Attorney ...................................................................................................13
C. The California Constitution Does Not Provide a Basis to Override Section 583 or Expand Disclosure of Confidential Information. ...................................................15
D. Proposed GO 66-D Violates the Due Process Rights of Parties Regulated by the Commission ............................................................................................................16
1. The California Public Utilities Commission has the Unfettered Power to Subpoena and Demand Documents from Public Utilities. As Such, it Collects Vast Amounts of Confidential Information. .........................18
2. Respondents Have a Protected Property Interest in the Confidential Information that the PUC Collects. Consequently, Due Process Attaches..................................................................................................................19
a) Protected Interests Under the Federal Constitution ...................................19
b) Protected Interests Under the California Constitution ...............................20
3. Due Process Attaches Because Proposed GO 66-D Involves Adjudicatory Actions. ............................................................................................23
4. Under the California and Federal Constitutions Proposed GO 66-D Fails to Provide Adequate Due Process .................................................................24
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC
COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF CONTENTS (CONTINUED)
Section Title Page
-ii-
a) Proposed GO 66-D Violates Due Process Because the Public Records Attorney Will Fail to Identify Confidential Information and Will Release it Without Notice or Hearing. ....................26
b) Even if the Public Records Attorney Does Identify Documents With Confidential Information, the Proposed Procedure Does Not Adequately Satisfy Due Process. ..............................29
E. Retroactive Application of Proposed GO 66-D Would be Unlawful. ...............................32
III. RESPONSES TO THE COMMISSION’S SPECIFIC QUESTIONS .................................................33
IV. CONCLUSION....................................................................................................................................35
EXHIBIT A
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITIES
Title Page
-iii-
FEDERAL CASES Bell v. Burson
402 U.S. 535 (1971) ................................................................................ 26,27 Bi-Metallic Inv. Co. v. State Bd. of Equalization
239 U.S. 441 (1915) ..................................................................................... 23
Board of Regents v. Roth 408 U.S. 564 (1972) ................................................................................ 19,23
Boddie v. Connecticut 401 U.S. 371 (1971) ..................................................................................... 26
Carpenter v. United States 484 U.S. 1926 (1987) .................................................................................. 20
Cleveland Bd. of Educ. v. Loudermill 470 U.S. 532 (1985) .................................................................................... 26
Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank 527 U.S. 627 (1999) ..................................................................................... 20
Gilbert v. Homar 520 U.S. 924 (1997) ..................................................................................... 25
Goss v. Lopez
419 U.S. 565 (1975) ..................................................................................... 23
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) ..................................................................................... 30
Mathews v. Eldridge 424 U.S. 319 (1976) .............................................................................. passim
Memphis Light, Gas & Water Div. v. Craft 436 U.S. 1 (1978) ......................................................................................... 26
Morrissey v. Brewer 408 U.S. 471 (1972) ................................................................................ 24,29
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITES (CONTINUED)
Title Page
-iv-
Mullane v. Central Hanover Trust Co.
339 U.S. 306 (1950) ..................................................................................... 23
Ruckelshaus v. Monsanto Co. 467 U.S. 986 (1984) ..................................................................................... 20
United States v. Florida E. Coast Ry. Co. 410 U.S. 224 (1973) ..................................................................................... 24
Zotos Int'l, Inc. v. Kennedy 460 F. Supp. 268 (D.D.C. 1978) .................................................................. 20
CALIFORNIA CONSTITUTION
Article I Sec. 1 ....................................................................................................... 20,22 Sec. 3(b)(1) .......................................................................................... 4,15,16 Sec. 3(b)(2) .................................................................................................. 15 Sec. 3(b)(5) .................................................................................................. 16 Sec. 7(a) ....................................................................................................... 20
Article XII Sec. 1 ............................................................................................................ 18 Sec. 1, et seq................................................................................................. 18 Sec. 3(b)(1) ...................................................................................................... Sec. 5 ............................................................................................................ 18 Sec. 6 ............................................................................................................ 18
CALIFORNIA CASES American States Co. v. Johnson
31 Cal. App. 2d 606 (1939) ......................................................................... 33 Bourquez v. Superior Court
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITES (CONTINUED)
Title Page
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Beaudreau v. Superior Court 14 Cal. 3d 448 (1975) .................................................................................. 23
102 Cal.App.4th 155 (2002) ......................................................................... 25 Burt v. Cnty of Orange
120 Cal. App.4th 273 (2004) ........................................................................ 20 Cal. Assn. of Private Special Educ. Sch. v. Dep’t of Educ.
California Sch. Employees Ass'n v. Livingston Union Sch. Dist. 149 Cal. App. 4th 391 (2007) ...................................................................... 26
Cal. State University v. Superior Court 90 Cal. App.4th 810 (2001) ............................................................................ 6
Civil Serv. Assn. v. City & Cnty. of San Francisco 22 Cal. 3d. 552 (1978) ............................................................................ 28,32
D & M Fin. Corp. v. City of Long Beach 136 Cal. App. 4th 165 (2006) ...................................................................... 24
Fullerton Union High School Dist. v. Riles
139 Cal. App. 3d 369 (1983) ....................................................................... 33 Gresher v. Anderson,
127 Cal. App. 4th 88 (2005) .................................................................... 30,31 Gilbert v. City of San Jose
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITES (CONTINUED)
Title Page
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24 Cal. 3d 605, 610 (1979) ........................................................... 23,26,27,30 In re J.W.
29 Cal.4th 200 (1992) .................................................................................. 11 Mohilef v. Janovici
Ryan v. Cal. Interscholastic Fed’n-San Diego Section 94 Cal. App. 4th 1048 (2001) -------------------------------------------- 20,21,24
San Diego Bldg. Contractors Assn. v. City Council, 13 Cal. 3d 205 (1974) .................................................................................. 23
San Diego Gas & Elec. Co. v. Superior Court 50 Cal. 3d 31 (1990) --------------------------------------------------------------- 18
San Jose Police Officers Assn. v. City of San Jose 199 Cal. App. 3d 1471 (1988) ---------------------------------------------------- 21
Schultz v. Regents of Univ. of Cal. 160 Cal. App. 3d 768 (1984) ----------------------------------------------------- 21
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITES (CONTINUED)
Title Page
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Smith v. Bd. of Med. Quality Assurance 202 Cal. App. 3d 316 (1988) ----------------------------------------------------- 21
Today's Fresh Start, Inc. v. Los Angeles Cnty. Office of Educ.,
Sec. 1060 ------------------------------------------------------------------------- 9,21 Government Code
Sec. 6252(e) -------------------------------------------------------------------------- 6 Sec. 6254 ---------------------------------------------------------------------- passim Sec. 6254(c) ---------------------------------------------------------------------- 9,22 Sec. 6254(k) --------------------------------------------------------------------- 9,11 Sec. 6254.15 ------------------------------------------------------------------------- 9 Sec. 6254.16 ------------------------------------------------------------------------- 7 Sec. 6254.5 --------------------------------------------------------------------------- 7 Sec. 6255(a) -------------------------------------------------------------------------- 7 Sec. 6275 ---------------------------------------------------------------------------- 11 Sec. 6276 ---------------------------------------------------------------------------- 11 Sec. 6276.36 ------------------------------------------------------------------------ 11 Sec.11342.2 ------------------------------------------------------------------------- 11
Public Utilities Code
Sec. 314 (a) .................................................................................................. 18 Sec. 314 (b) .................................................................................................. 18 Sec. 315 ........................................................................................................ 10 Sec. 454.5(d) ................................................................................................ 10 Sec. 454.5(g) ................................................................................................ 22
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
TABLE OF AUTHORITES (CONTINUED)
Title Page
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Sec. 583 ................................................................................................. passim Sec. 8380 ................................................................................................... 7,22
GENERAL ORDERS
OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION General Order 66-C ------------------------------------------------------------------ 3,4,8,16 General Order 96-B ------------------------------------------------------------------------- 13 General Order 96-B, Sec. 1, 1.1 ----------------------------------------------------------- 13 DECISIONS OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION Order Instituting Rulemaking to Consider Smart Grid Technologies Pursuant to Federal Legislation and on the Commission’s own Motion to Actively Guide Policy in California’s Development of a Smart Grid System
2014 Cal. PUC LEXIS 202, Cal. P.U.C., Dec. 14-05-016 (2014) ------- 7.22 PG&E Application for Approval of 2010-2011 SMART AC (TM) Program and Budget
2011 Cal. PUC LEXIS 34, Cal. P.U.C. Dec. 11-01-036 (2011), ------------- 8 Joint Application of PG&E, SCE and SDG&E to Amend the Reporting Criteria for Incidents Involving Trees or Other Vegetation in the Vicinity of Power Lines
Cal. P.U.C. Dec. 06-04-055 (2006) ---------------------------------------------- 10 Order Instituting Rulemaking to Implement Senate Bill No. 1488 Relating to Confidentiality of Information
2006 Cal. PUC Lexis 222, Cal. P.U.C. Dec. 06-06-066 (2006) --------------- 5 Application of Williams Communications, LLC
Cal. P.U.C. Dec. 02-03-049 (2002) ----------------------------------------------- 8 Applications for Rehearing of Resolution M-4801
Cal. P.U.C. Dec. 02-02-049 (2002) ---------------------------------------------- 13 Application for Authority to Transfer Control of Preferred Carrier Services, Inc.
Cal. P.U.C. Dec. 99-03-030 (1999) ----------------------------------------------- 8 In re Southern California Edison Co.
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
SECONDARY AUTHORITY Sara B. Tosdal, Preserving Dignity in Due Process 62 Hastings L.J. 1003 (2011) 19,25
1
EXECUTIVE SUMMARY
Southern California Edison Company, San Diego Gas & Electric Company, Southern
California Gas Company and Southwest Gas Corporation (collectively, “Respondents”)
acknowledge the strong public interest in transparency regarding the California Public Utilities
Commission’s (Commission) operations. Respondents support rule changes that assist in
effectuating such transparency, and assert that such changes should be balanced against the
strong interest in preserving the privacy of confidential information submitted to the
Commission. Accordingly, Respondents recommend that Proposed General Order (“GO”) 66-D
be modified for the following reasons:
1. Proposed GO 66-D harms the public and customers by inadequately
protecting confidential information. As explained herein, the interest of public access to
Commission records must be carefully balanced against the important need for protections of
confidential information. Proposed GO 66-D must be modified to avoid jeopardizing the
confidential information of customers, utilities, employees, and vendors, including their personal
information, trade secrets, and proprietary data. Among other harms, disclosure would lead to
higher rates, create business disadvantages, interfere with contracts, incite litigation, and infringe
privacy.
2. Proposed GO 66-D is inconsistent with Cal. Pub. Util. Code § 583. Section
583 requires an order by the Commission or a Commissioner before releasing information
submitted to it by the utilities under that section. It does not allow the Commission to delegate
this duty to its Staff. Because Proposed GO 66-D allows a Public Records Attorney (PRA) (a
staff member) to determine whether to disclose information claimed to be confidential without a
Commission order, it violates Section 583 and the California Public Records Act (CPRA).
3. Proposed GO 66-D violates the due process rights of interested parties. Due
process requires notice and an opportunity to be heard before the deprivation of a protected
interest, including the interest in confidential information submitted to the Commission. Among
2
other reasons, because Proposed GO 66-D allows the PRA to decide whether information under
a claim of confidentiality is disclosable without notice and an opportunity to be heard, due
process is denied.
4. Proposed GO 66-D is unlawfully retroactive. Retrospective laws are invalid
when they deprive a party of a vested right, including the vested right in the confidentiality of
information submitted to the Commission. Disclosing documents previously submitted under the
promise of confidentiality would constitute an unjust deprivation of the right to protect
confidential records.
Finally, before adoption of Proposed GO 66-D, the Commission should hold workshops
so that all interested parties can participate in deciding upon a process that adequately protects
the confidentiality of information held by the Commission.
3
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA
Order Instituting Rulemaking to Improve Public Access to Public Records Pursuant to the California Public Records Act
)))
Rulemaking 14-11-001 (Filed November 6, 2014)
OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY
(U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS &
ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-
G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D
I. INTRODUCTION
Pursuant to Ordering Paragraph 4 of the OIR, Respondents respectfully submit these
opening comments to the Order.1
Respondents appreciate this opportunity to assist the Commission in determining whether
and/or how it should modify GO 66-C by adopting a new GO 66-D. The approach set forth in
Proposed GO 66-D2 fails to adequately protect confidential information by: (1) shifting the
presumption that submitted utility records are public; (2) removing the requirement that a
Commission order is required for releasing submitted utility records; and (3) failing to provide
notice to utilities and the real parties in interest upon receiving a request for public records, in
1 Pursuant to Administrative Law Judge (“ALJ”) Rafael L. Lirag’s E-mail Ruling on November 21, 2014, the period for filing opening comments was extended from December 12, 2014 to December 22, 2014, and the period for filing reply comments was extended from January 9, 2015 to January 22, 2015.
2 Herein, references to “Proposed GO 66-D” encompass the proposed GO as well as the related approach set forth in the OIR.
4
violation of due process. In so doing, the Commission harms the public interest in general and
utility customer interest in particular. Accordingly, Respondents oppose the adoption of the
Proposed GO 66-D as currently drafted and respectfully request that the Proposed Order be
modified.
While the Order’s stated intent is to “increase public access to records furnished to the
Commission,” the Order fails to anticipate, identify, or address specific problems related to the
public’s access to non-confidential documents and/or information that utilities submit to the
Commission. Unfortunately, the OIR’s overwhelming focus on public access prevents proper
consideration of the real privacy and property interests of utilities, utility customers, and the
public, whose confidential information is in the Commission’s possession.
Moreover, the proposed general order is premised on incorrect legal and policy grounds
and fundamentally misconstrues and misapplies Public Utilities Code Section 583 and Article I,
Section 3(b)(1) of the California Constitution. In addition, Proposed GO 66-D would unlawfully
delegate to Commission staff the actual case-by-case decision making reserved exclusively to the
Commission in Section 583. Further, the process set forth in Proposed GO 66-D would create
substantial confusion regarding the status of documents and the information contained within
documents, and thus inadequately protect the confidentiality of documents and the information
contained therein. Moreover, the potential disclosure of this information would harm the public
and/or utility customers by unnecessarily increasing costs and utility rates, and will lead to
significant additional expenditure of resources and time by the Commission, practitioners and
parties. Therefore, Respondents respectfully request that the Commission:
(1) Reject Proposed GO 66-D as currently drafted and rely on the confidentiality
protections provided by GO 66-C;3 or, in the alternative,
3 In practice, it appears that the Commission at least in some cases currently may be failing to provide adequate notice prior to the disclosure of confidential information. For example, notice of draft Resolution L-464 appeared on the CPUC’s November 25, 2014 Daily Calendar, which authorized
Continued on the next page
5
(2) Modify Proposed GO 66-D to address the concerns raised by respondents.
If the Commission prefers to move forward with alternative 2, Respondents strongly
recommend that the Commission hold workshops led by the assigned ALJ and/or Commissioner
to fully consider the issues. 4 Workshops are needed because there are numerous categories of
confidential information covered by this proceeding5, and many parties in interest potentially
harmed in various ways by disclosure across the different categories, including utilities,
customers and the public. It is important for the Commission to hear from parties in interest
regarding the particular harms associated with disclosure of particular types of confidential
information. After workshops are held on the categories of confidential information and how
parties in interest can be harmed by disclosure, the Commission should hold additional
workshops on how best to structure a process that serves the public interest in disclosure while
protecting the public interest in confidentiality and maintaining the Commission’s statutory and
due process obligations to parties in interest. Given the great volume of documents that will be
covered by the Commission’s ultimate process, care must be taken to fully vet these issues.
In subsequent sections, Respondents’ opening comments will address the following:
The Commission’s Proposed Approach Harms the Public—and Customers—by
Inadequately Protecting Confidential Information
Continued from the previous page
disclosure of an electrical incident report. Draft Resolution L-464, http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M124/K571/124571547.PDF.
The notice appeared after the time for comment had passed, and the draft resolution failed to include helpful information to parties in interest, e.g., who sought the disclosure, the utility service territory in which the incident occurred, or a description of the incident.
4 Although a June 19, 2012 workshop was held for Resolution L-436, the scope of that proceeding was limited to safety related records. Resolution L-436, p. 1. Rulemaking 14-11-001, on the other hand, includes all categories of confidential information, of which there are many, each with its own particular issues and potential harms to parties in interest arising from disclosure.
5 Respondents note that this OIR properly refrains from amending or discussing the matrices adopted by Decision D.06-06-066 regarding electric procurement data and Respondents assert that said matrices should only be re-evaluated in accord with the process discussed in R.05-06-040, or in response to petitions for modification.
6
Proposed GO 66-D Is Inconsistent with the California Public Records Act and
Public Utilities Code Section 583
The California Constitution Does Not Provide a Basis to Override Section 583 or
Expand Disclosure of Confidential Information
Proposed GO 66-D Violates Due Process Rights of Parties Regulated by the
Commission
Retroactive Application of Proposed GO 66-D Would Be Unlawful
II. LEGAL ARGUMENT
A. The Commission’s Proposed Approach Harms The Public—And
Customers—By Inadequately Protecting Confidential Information
In principle, the Commission recognizes that increasing the public’s access to records
must be balanced against the need to ensure that “information truly deserving of confidential
status retains that protection.”6 In practice, however, the Commission’s proposed approach fails
to adequately protect the public’s interest in confidentiality, and will lead to the disclosure of
documents that harm both public’s and customers’ interests.
The Commission’s stated purpose for this Rulemaking is “to improve the public’s access
to records that are not exempt under the California Public Records Act or other state or federal
law.”7 The Commission acknowledges that it is not appropriate to disclose a record8 where “the
6 OIR, p. 1. 7 Id. (emphasis added). 8 Not all writings submitted to the Commission by a utility necessarily meet the definition of “public
record”, though the OIR appears to conflate “public record” with “writing” in its discussion (see OIR, pp. 2-4). For a writing to be subject to CPRA, it must meet the definition of a “public record” under CPRA and contain “information relating to the conduct of the public’s business.” Cal. Gov’t Code §6252(e). Further, the “mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record.” Cal. State University v. Superior Court, 90 Cal. App.4th 810, 824 (2001), cited in OIR, p. 3, n.5.
7
public interest in confidentiality clearly outweighs the public interest in disclosure.”9 Once a
document is disclosed to a member of the public, it is generally available upon request to any and
all members of the public.10 As such, it is critical that the Commission adequately protect
confidential information where disclosure would harm the public interest.
As discussed in more detail below, Proposed GO 66-D fails to adequately protect
confidential information by: (1) Shifting the presumption that submitted records are public; (2)
Removing the requirement that a Commission order is required for releasing submitted records;
and (3) Failing to provide notice to utilities and affected third parties upon receiving a request for
public records. By failing to adequately protect confidential information, the Commission harms
the public interest.
In failing to adequately protect the public interest in confidentiality, the Commission also
fails to protect utility customer interest. In many cases, the public and customer interests in
confidentiality are one in the same. There are many categories of confidential
documents/information, however, for which disclosure particularly harms customers; below are
some examples:
Customer Information. Perhaps the most obvious category of confidential information
that customers have an interest in is information about customers themselves. Section
8380 of the Public Utilities Code requires the use of reasonable security procedures to
protect customer information held by a utility.11 In addition, the Commission itself has
long recognized that utility customers have a constitutional expectation of privacy in such
9 OIR, p. 3 (emphasis added). “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest is served by not disclosing the record clearly outweighs the public interested served by disclosure of the record.” Cal. Gov’t Code Section 6255(a) cited in OIR, p. 3, n.8.
10 Cal. Gov’t Code §6254.5; Black Panther Party v. Kehoe, 42 Cal.App.3d 645, 656 (1974). 11 Cal. Gov’t Code § 8380; D.14-05-016, 2014 Cal. PUC LEXIS 202. See also Cal. Gov’t Code §
6254.16, describing the types of customer information not to be disclosed.
8
information.12 By relaxing the process for protecting confidential information, the
Commission’s proposed approach unreasonably risks directly harming customers by
making their confidential information more likely to be disclosed. The Commission
should exercise great care in designing and implementing any information disclosure
programs so that such program complies in actuality—not just in theory--with all privacy
statutes and the state’s Constitution.
Sensitive Vendor Pricing and Bid Information. The disclosure of confidential vendor
pricing and bid information necessarily harms utility vendors by disclosing confidential
and proprietary trade secret information, and also harms customers. “Confidential prices
and contract terms specifically negotiated with a program vendor . . . is proprietary and
commercially sensitive and should remain confidential.”13 Currently, under GO 66-C:
“Public records not open to public inspection include…Reports, records, and information
requested or required by the Commission which, if revealed, would place the regulated
company at an unfair business disadvantage.”14 When the Commission makes such
information public, the utility loses the benefit of competitive pricing and incurs higher
costs; these costs ultimately are passed along to customers. By driving rate increases, the
Commission’s failure to adequately protect this type of confidential information harms
customer interests. In addition, suppliers with substantial investment in proprietary
technology will not want to do business with utilities when this can put this investment at
risk. This may also limit the utilities’ ability to utilize cost-saving new technology, which
value. Proposed GO 66-D reduces protection for this and other types of confidential
information, which in turn harms customers.
Contracts That Contain Existing Confidentiality Agreements. When utilities enter
into contracts with third parties, such contracts can contain confidentiality agreements.
Violating these confidentiality agreements, could result in the need to pay damages.
Customers are responsible for reasonable costs of contract administration.19 Customer
costs could increase if the utilities are placed in a position of paying damages for
violating their contracts with third parties.
Public Utilities Code Section 315 Reports & Incident Related Data Request
Responses. Under Resolution E-4184, Decision No. 06-04-055, and Section 315 of the
Public Utilities Code, utilities are required to submit incident and confidential
investigation information to the Commission and respond to incident related data
requests. As a result, utilities often times provide incident information, including various
potential, but unconfirmed, causes for an incident to the Commission. The PRA’s
unilateral review and disclosure decision20 makes inadvertent/inappropriate disclosure of
confidential Section 315 reports and responses to incident related data requests more
likely to happen. When the Commission makes such information public, it will likely
result in an increase in litigation costs and unsubstantiated claims where individuals,
entities or plaintiff’s lawyers use preliminary incident reports as alleged evidence against
the utility to demand larger settlement payments. These costs may ultimately be passed
along to customers, thereby harming customer interests.
19 The reasonable costs of contract administration related to energy procurement contracts are recoverable on a pass through basis through the Energy Resource Recovery Account (ERRA) pursuant to Assembly Bill (AB) 57 framework. See Cal. Pub. Util. Code § 454.5(d). Contract administration costs, not related to energy procurement, are recovered through the IOU’s General Rate Case (GRC) rates as a regular Operations & Maintenance (O&M) expense. Higher O&M expense for higher contract administration costs would become part of the historical baseline for future GRC’s, and customers would be adversely affected.
20 Proposed GO 66-D, ¶ 4.
11
B. Proposed GO 66-D Is Inconsistent with the California Public Records Act
and Public Utilities Code Section 583
Proposed GO 66-D is not valid or effective because it is inconsistent with the CPRA and
Section 583.
When a state agency adopts a regulation, “…no regulation adopted is valid or effective
unless consistent and not in conflict with the statute and reasonably necessary to effectuate the
purpose of the statute.”21 Further, administrative rules should be consistent and not antagonistic
toward the purpose and intent of the legislation, with a view toward promoting rather than
defeating the statute's general purpose.22 Additionally California courts have held,
“Administrative regulations that alter or amend the statute or enlarge or impair its scope are void
and courts not only may, but it is their obligation to strike down such regulations.”23
The CPRA lists statutes that “may operate to exempt certain records, or portions thereof,
from disclosure.”24 The CPRA also acknowledges that the listed statutes may trigger the
exemption for records whose “…disclosure … is exempted or prohibited pursuant to federal or
state law.”25 Section 583 is listed as such a statute exempting records from disclosure.26
Therefore, Proposed GO 66-D must be consistent with Section 583; it is not consistent, however.
Section 583 states:
No information furnished to the commission by a public utility….except those
matters specifically required to be open to public inspection by this part, shall be
open to public inspection or made public except on order of the commission, or
by the commission or a commissioner in the course of a hearing or proceeding.27
21 Cal. Gov’t Code § 11342.2. 22 Bourquez v. Superior Court, 156 Cal.App.4th 1275, 1288 (2007); In re J.W., 29 Cal.4th 200, 213
Section 583 guarantees that utilities’ and third parties’ confidential information that has
been submitted to the Commission cannot be disclosed unless the Commission takes specific
action and provides an opportunity to be heard. This is true regardless of whether the
information is submitted voluntarily or through the exercise of the Commission’s subpoena
power. In doing so, Section 583 guarantees the parties due process and direct Commission
action before confidential information is made available for public inspection.
Proposed GO 66-D contradicts the CPRA and Section 583 by eliminating Section 583’s
procedural guarantees and due process rights by allowing information to be disclosed publicly
without notice or an opportunity for hearing. Instead, under Proposed GO 66-D, all that is
required is a unilateral determination by a “Public Records Attorney” (“PRA).28
The same analysis applies when the CPRA is considered as legislation coequal to Section
583. The CPRA does not supersede Section 583 and the Commission should not adopt a
regulation that negates or circumvents the rights afforded under coequal legislation.
Accordingly, Proposed GO 66-D does not comply with the purpose and intent of the
CPRA, or Section 583, and is therefore invalid and ineffective.
1. Proposed GO 66-D Improperly Shifts The Presumption That All Utility
Records Submitted to the Commission Are Public Information
Section 583 requires the Commission to issue an order prior to disclosing information
that a utility identifies to the Commission as confidential. Proposed GO 66-D conflicts with
Section 583 because it “[r]emoves Pub. Util. Code § 583 as authority for exempting records from
public disclosure.”29 The plain language of the statute cannot be read to allow a presumption of
public access to utility records. The intent of Section 583 is to encourage utilities to share
information in their possession, whether proprietary to the utilities or to third parties with which
28 Proposed GO 66-D, ¶ 4. 29 OIR, p. 4 (Discussion ¶ 3(2)).
13
they do business, by promising that designated confidential information will only be disclosed if
the commissioners approve a particular request for disclosure. Proposed GO 66-D purports to
nullify Section 583 by improperly authorizing disclosure without any particularized Commission
review of any of the information requested to be made public. 30
2. Proposed GO 66-D Improperly Delegates Authority to the Public Records
Attorney
Proposed GO 66-D violates Section 583 because it improperly delegates the authority to
determine confidentiality and confidential utility information (or related third parties’
confidential information) to Commission staff.31
Respondents note that in Final Resolution No. L-436, dated February 13, 2013, the
Commission asserted that it may “delegate to staff authority to determine whether a particular
record falls within a public class of records or a confidential class of records, and whether a
request for confidential treatment seeks such treatment for records required to be public by
statute or CPUC order.”32 The Commission cites its previous delegation of authority under GO
96-B in support of this assertion.33 Respondents disagree with the Commission’s position and
assert that the delegation of authority under GO 96-B and the proposed delegation in the instant
matter are factually and legally distinguishable.
As an initial matter, the Commission’s delegation of authority under GO 96-B and the
proposed delegation in Proposed GO 66-D are factually different. In general, GO 96-B governs
the Commission-created process of “advice letters and information-only filings submitted to the
Commission by public utilities…,”34 whereas the Commission’s proposed delegation of authority
30 Proposed GO 66-D, ¶¶ 4-5. 31 Proposed GO 66-D, ¶¶ 4-5. 32 Final Resolution No. L-436, dated February 13, 2013, p. 6 (discussing the Commission’s delegation
of authority for advice letters under GO 96-B). 33 Id. (citing Resolution No. M-4801 and D.02-02-049). 34 GO 96-B, § 1, ¶ 1.1.
14
under Proposed GO 66-D involves disclosure of confidential utility information (or related third
parties’ confidential information) in response to CPRA requests.
Furthermore, a plain language reading of Section 583 does not allow for the Commission
staff to make disclosure decisions, or for the Commission to delegate its disclosure authority.
Section 583 expressly requires that disclosure of confidential utility information (or related third
parties’ confidential information) can only be “made public” by an “order of the commission, or
by the commission or a commissioner in the course of a hearing or proceeding.”35 The intent of
Section 583 is to encourage utilities (and related third parties) to share information by promising
that information will only be disclosed if the commissioners approve a particular request for
disclosure. Proposed GO 66-D violates and nullifies Section 583 by authorizing disclosure
without any Commission review of the utility information.36
Additionally, Section 583 cannot be reasonably interpreted to permit the Commission to
issue a regulation that has the effect of a single so-called “order” applicable to all utility
information. Yet that is precisely what Proposed GO 66-D would do. In directing a Public
Records Attorney (“PRA”) to determine if disclosure is warranted under the CPRA, Proposed
GO 66-D would necessitate an extensive and complicated process to scrutinize each document to
determine if confidentiality was claimed and whether the information was “submitted to the
Commission under a lawful claim of confidentiality.”37 No other person or body is charged with
this task. This delegation violates Section 583, because it permits a party other than the
Commission or a Commissioner to control the disclosure of confidential utility information.
Indeed, the Commission has previously recognized that staff can have no such authority
under Section 583, which “assures that staff will not disclose information received from
regulated utilities unless that disclosure is in the context of a Commission proceeding or is
35 Cal. Pub. Util. Code § 583. 36 Id. 37 Id.
15
otherwise ordered by the Commission.”38 The Commission itself has authority to determine
documents to be public in accordance with Section 583, but in exercising this authority, the
Commission itself must consider documents on a case-by-case basis, rather than issuing a
blanket regulation reversing the presumption of confidentiality that Section 583 establishes.
Accordingly, the Commission may not under any circumstances delegate its exclusive
statutory authority under Section 583 to staff.
C. The California Constitution Does Not Provide a Basis to Override Section
583 or Expand Disclosure of Confidential Information.
The OIR cites to Cal. Const. Article I, Section 3(b)(1) as support for the contention that
the public has a right “to access most government information.” While Cal. Const. Article I,
Section 3(b)(2) directs that rules and orders governing disclosure should be interpreted broadly
to serve the public interest, it does not permit a government entity to create a new mandate that
does not exist in statute or law. Cal. Const. Article I, Section 3(b)(1) enunciates the general
principle that “[t]he people have the right of access to information concerning the conduct of the
people's business, and, therefore, the meetings of public bodies and the writings of public
officials and agencies shall be open to public scrutiny.”39 The clear intent of this provision is
that public agencies must operate in a transparent manner. Documents and information submitted
by public utilities to the Commission are not “the writings of public officials and agencies.”
While it may be necessary sometimes for the Commission to disclose proprietary information
about utilities in aggregate form to explain the need or basis for a Commission decision, it is not
necessary for the Commission to disclose an individual utility’s, customer’s, or utility vendor’s
proprietary information in order to operate transparently.
38 D. 91-12-019, 42 Cal. P.U.C. 2d 298, 300. 39 Cal. Const. Art. I, § 3(b)(1) (emphasis added).
16
It is also important to note that this constitutional provision did not repeal or replace
existing laws. Indeed, Cal. Const. Article I, Section 3(b)(5) expressly protects exemptions from
and exceptions to public disclosure of agency records by stating that “[t]his subdivision does not
repeal or nullify, expressly or by implication, any constitutional or statutory exception to the
right of access to public records ….”40 This means that the laws on which the Commission relied
to adopt GO 66-C are not affected by this constitutional provision. Thus, GO 66-C does not now
need to be revised because of this constitutional provision.
D. Proposed GO 66-D Violates the Due Process Rights of Parties Regulated by
the Commission
Proposed GO 66-D, as written, violates the due process rights of parties who have a
protected interest in the confidential information obtained by the Commission through its
subpoena power. As such, Proposed GO 66-D should be modified or abandoned.
At its most fundamental level, due process requires reasonable notice and an opportunity
to be heard before the deprivation of a protected interest. In this case, Respondents (and related
third parties) have a protected interest in the confidential information collected by the
Commission through its broad subpoena power. Proposed GO 66-D, however, only gives these
parties notice when the Public Records Attorney has already determined that a document being
requested contains confidential information and accurately identifies the parties in interest.
These procedures, as explained below, are insufficient and violate the parties’ rights to due
process.
First, the Commission both possesses and continually collects a vast amount of
documents and information. Given the number and size of the documents in question, it is
inevitable that the Commission will unwittingly release confidential information. Under
proposed GO 66-D, the PRA only gives notice when he successfully identifies confidential
40 Id.
17
information, resulting in some parties’ interests being injured without warning. This is a clear
violation of the due process requirements of notice and opportunity to be heard.
Second, it may be impracticable to initially identify all of the real parties in interest when
a records request is made. As such, those parties who are not identified will not receive the
adequate notice nor the opportunity to be heard that due process requires.
Third, even if the Commission successfully identifies a document as containing
confidential information, it may not specifically identify where and what kind of information is
contained within the document. Given the vastness of the documents in question, parties cannot
be apprised of their interests at stake without this specific information. Failing to identify the
interests at stake both vitiates the parties’ right to notice and their meaningful ability to be heard.
Fourth, as structured, Proposed GO 66-D makes the resolutions discussing the release of
confidential information public. Describing confidential information with enough particularity
to put the interested parties on notice, however, may jeopardize the confidentiality of the
information itself. In other words, the Commission’s attempt to give appropriate notice may
destroy the very interest it is trying to protect.
Finally, if analyzed under the federal or state Matthews or Ramirez tests, explained
herein, a court is likely to find the procedures offered in the Proposed GO 66-D insufficient
because (1) there is a high risk of Commission error; (2) additional procedural safeguards would
adequately reduce this risk; and (3) the private interest in the protected information outweighs
the Commission’s interest in using this particular procedure.
For the foregoing reasons, the Proposed Order, as written, does not comport with due
process and should be modified or abandoned.
18
1. The California Public Utilities Commission has the Unfettered Power to
Subpoena and Demand Documents from Public Utilities. As Such, it
Collects Vast Amounts of Confidential Information.
Unlike most state agencies, the Commission derives its authority directly from the
California Constitution.41 In addition to this authority, the California legislature has plenary
power to confer supplemental powers upon the Commission.42 As a result, the Commission’s
powers and duties extend far beyond that of most other public agencies.43
The Commission has broad authority to subpoena and collect documents from public
utilities.44 Consequently, the PUC collects a vast amount of records, including large amounts of
utility and third party confidential and proprietary information.
A few examples are instructive: (1) The transaction details for gas purchases and sales
provided by the utilities to the Commission as part of its GCIM reports. These include market-
sensitive data such as counterparties’ name, transaction volume, price, and delivery locations. In
addition, the terms of each transaction are also protected under a confidentiality provision in its
NAESB agreements. (2) The terms of interstate pipeline capacity contracts being negotiated
that. These are provided to a Capacity Consulting Group comprised of Commission staff.
Disclosure of this aforementioned information would put the utilities at a competitive
disadvantage with its competitors. (3) Auction-related information that is strictly prohibited
from being disclosed under the California Air Resources Board (CARB) Cap-and-Trade rules,
41 Cal. Const. Art. XII, §§ 1-9.; People v. W. Air Lines, 42 Cal. 2d 621, 634 (1954). 42 Cal. Const. Art. XII, § 5.; W. Air Lines, 42 Cal. 2d at 634. 43 See San Diego Gas & Elec. Co. v. Superior Court, 13 Cal. 4th 893, 914 (1996); W. Air Lines, 42 Cal.
2d at 634 (“The commission is a state agency of constitutional origin with far-reaching duties, functions and powers.”).
44 Cal. Const. art. XII, § 6 (“The commission may … examine records, issue subpoenas … [and] take testimony … for all public utilities subject to its jurisdiction.”); Cal. Pub. Util. Code § 314(a) (“The commission, each commissioner, and each officer and person employed by the commission may, at any time, inspect the accounts, books, papers, and documents of any public utility….”); Cal. Pub. Util. Code § 314(b) (allowing the commission to inspect documents from utility subsidiaries and affiliates); see also S. Cal. Gas Co. v. Pub. Utilities Com., 50 Cal. 3d 31, 38-39, n.9 (1990) (affirming the PUC’s broad powers, including the ability to examine records).
19
except if provided to a regulatory agency such as the CPUC. And (4) proprietary information
provided to the Commission through the Custom Project Review Process.45 This last example is
explored in the exhibit, attached. Together, these represent just a minute fraction of the
confidential information submitted to the Commission and in the Commission’s possession.
2. Respondents Have a Protected Property Interest in the Confidential
Information that the PUC Collects. Consequently, Due Process Attaches.
a) Protected Interests Under the Federal Constitution
Under the federal Constitution, the government must risk or deprive an individual’s
protected property or liberty interest in order for due process to attach.46 The Supreme Court has
stated that the "procedural protection of property is a safeguard of the security of interests that a
person has already acquired in specific benefits."47 Property interests are created and
circumscribed by "existing rules or understandings that stem from an independent source such as
state law."48 In order for an individual to have a property interest in a benefit, that individual
must have a legitimate claim of entitlement to, not just an "abstract need" or "unilateral
expectation" for the benefit.49
In this case, Respondents (and related parties in interest) have a protected property
interest in the confidential information collected by the Commission. Some of this information,
for example, involves the personal, protected, and private information of customers and
45 See Exhibit A (Examples of EE Customer Confidential/Proprietary Data Provided to Energy Division), attached.
46 Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972); Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976).
47 Roth, 408 U.S. at 576. 48 Id. at 577. 49 Roth, 408 U.S. at 577; see generally Sara B. Tosdal, Preserving Dignity in Due Process, 62 Hastings
L.J. 1003, 1030 (2011) (elaborating on the circumstances necessary to invoke federal due process).
20
employees. Courts have consistently recognized that preventing the dissemination of private
information is a protected interest triggering due process.50
Likewise, some information provided to the Commission contains sensitive intellectual
property, trade secrets, and proprietary business information. The protection of intellectual
property and proprietary information has also been recognized as an interest protected by due
process.51 Indeed, the U.S. Supreme Court has held that corporations have a property right in
their confidential business information.52 Given these interests, Respondents are entitled to due
process under the federal Constitution before the Commission disseminates confidential
information.
b) Protected Interests Under the California Constitution
Although the due process clause of the California Constitution is substantially identical to
the federal one, the analytical framework, as set out in People v. Ramirez, is slightly different.53
Unlike the federal test, neither a property nor a liberty interest is a prerequisite for due
process protection under Ramirez.54 Although there is some disagreement, most courts have held
50 See, e.g., Burt v. Cnty of Orange, 120 Cal. App. 4th 273, 285 (2004) (stating one class of legally recognized privacy interests includes informational privacy, meaning an interest in precluding the dissemination or misuse of sensitive and confidential information.); see also Cal. Const., Art. I, § 1 (guaranteeing privacy as an inalienable, constitutional right).
51 See, e.g., Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 642 (1999) (patents are considered property triggering due process); Great Falls Tribune v. Montana Pub. Serv. Comm'n, 319 Mont. 38, 50 (2003) (trade secrets and confidential business information are property interests implicating due process); Zotos Int'l, Inc. v. Kennedy, 460 F. Supp. 268, 273 (D.D.C. 1978) (“The Court finds that a trade secret is a property interest within the scope of the Due Process Clause….”) Pennsylvania Bankers Ass'n v. Pennsylvania Dept. of Banking, 981 A.2d 975, 1000 (Pa. Commw. Ct. 2009) (the proprietary information of credit unions was an interest protected by due process).
52 Carpenter v. United States, 484 U.S. 19, 26 (1987) (“Confidential business information has long been recognized as property.”); see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1012 (1984) (recognizing that trade secrets are property interests protected by the takings clause).
53 Cal Const, Art. I § 7(a); People v. Ramirez, 25 Cal. 3d 260, 269 (1979). 54 Ramirez, 25 Cal. 3d at 264 (“[D]ue process analysis must start not with a judicial attempt to decide
whether the statute has created an "entitlement" that can be defined as "liberty" or "property," but with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake.”); Ryan v. Cal. Interscholastic Fed’n-San Diego Section,
Continued on the next page
21
that invoking due process under the California Constitution requires the deprivation of an
identifiable statutory interest or benefit.55 This is a low bar; although the benefit must be
conferred via statute, the benefit does not have to be concrete or substantial enough to rise to the
level of a property interest protected by the Federal Constitution.56 As such, California due
process is broader than its federal counterpart.57
In this case, the parties have received multiple statutory guarantees of confidentiality.
Importantly, the California Uniform Trade Secrets Act confers and requires the protection of
trade secrets.58 A “trade secret” includes any information that derives independent economic
value from not being generally known to the public.59 Similarly, the California Public Records
Act protects proprietary information and trade secrets from disclosure. It states: “Nothing in this
chapter shall be construed to require the disclosure of records that are any of the following:
corporate financial records, corporate proprietary information including trade secrets….”60
Continued from the previous page
94 Cal. App. 4th 1048, 1071 (2001) (due process does not require a property interest in order to be invoked); Schultz v. Regents of Univ. of Cal., 160 Cal. App. 3d 768, 782 (1984) (cases state that no property or liberty interest is necessary to invoke due process).
55 See, e.g., Schultz, 160 Cal. App. 3d at 781 (“[P]resumably not every citizen adversely affected by governmental action can assert due process rights; identification of a statutory benefit subject to deprivation is a prerequisite.”); San Jose Police Officers Assn. v. City of San Jose, 199 Cal. App. 3d 1471, 1479 (1988) (because a statute conferred a benefit, process was due under Ramirez); Ryan, 94 Cal. App. 4th at 1071 (“Although under the state due process analysis an aggrieved party need not establish a protected property interest, the claimant must nevertheless identify a statutorily conferred benefit or interest of which he or she has been deprived to trigger procedural due process under the California Constitution.”).
56 See Smith v. Bd. of Med. Quality Assurance, 202 Cal. App. 3d 316, 329 (1988) (finding a statutorily conferred interest invoking California due process, but no federal due process protections); Ryan, 94 Cal. App. 4th at 1071 (2001) (stating that a federally protected property interest need not be present for due process to attach under the California Constitution).
57 San Jose Police Officers Assn., 199 Cal. App. 3d at 1478 (“[T]he California Constitution's due process clause protects a broader range of interests than the federal Constitution's due process clause.”)
58 See Cal. Civ. Code §§ 654-655, 3426-3426.10. 59 Cal. Civ. Code § 3426.1(d). 60 Cal. Gov’t Code § 6254.15; Cal. Gov’t Code § 6254(k); see also Cal. Evid. Code § 1060 (creating a
privilege, allowing employees to refuse the disclosure of trade secrets)
22
Likewise, the Public Utility Code requires protection of confidential market-sensitive energy
procurement-related data.61
The confidential information of employees and customers is also protected by statute. In
fact, the CPRA, often thought of as the champion of transparency, specifically aims to protect
privacy. As one court has stated, “[r]ecognition of the importance of preserving individual
privacy is also evident in [the CPRA]. The [C]PRA begins with the phrase: ‘In enacting this
chapter, the Legislature [is] mindful of the right of individuals to privacy, … [d]isclosure of
public records thus involves two fundamental yet competing interests: (1) prevention of secrecy
in government; and (2) protection of individual privacy.”62 In harmony with this theme, the
CPRA exempts from disclosure “[p]ersonnel, medical or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.”63 In addition, Cal. Pub. Util.
Code § 8380 requires the use of reasonable security procedures to protect customer information
held by a utility.64 More generally, the California Constitution also recognizes privacy as an
inalienable, constitutional right.65
Together, it is undisputable that confidentiality is not just an abstract right, but a clear,
statutorily conferred entitlement. Risking the release of confidential information endangers this
protected interest and triggers, not only federal due process, but California due process as well.
61 Cal. Pub. Util. Code § 454.5(g); D.14-05-016, 2014 Cal. PUC LEXIS 202 (“Section 454.5(g) of the Pub. Util. Code requires the protection of confidential market-sensitive energy procurement-related data, and the California Uniform Trade Secrets Act, California Civil Code Section 654-655, 3426-3426.10 require protection of trade secrets.”).
62 Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 610 (2003) (citations ommitted); see also Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 652, 117 Cal. Rptr. 106, 110 (1974) (“[T]he California Public Records Act bespeaks legislative concern for individual privacy as well as disclosure ‘concerning the conduct of the people's business.’”) citing Cal. Gov’t Code § 6250.
3. Due Process Attaches Because Proposed GO 66-D Involves Adjudicatory
Actions.
Due process requires reasonable notice and an opportunity to be heard before the
governmental deprivation of a protected interest.66 It is well settled, however, that only those
governmental decisions that are “adjudicative” in nature are subject to procedural due process.
“Legislative” or “quasi-legislative” actions do not require due process.67 The courts have
delineated these terms: Adjudicatory decisions involve government actions that affect a small
number of individuals and that depend on the peculiar facts of each individual case.68
Legislative decisions, by contrast, involve the adoption of broad, generally applicable rules of
conduct based on concepts of general public policy.69 As one court succinctly noted:
Generally, a governmental agency functions legislatively when it promulgates policies, standards, regulations, or rules of general application and prospective operation. The agency's decision is appropriately based on considerations similar to those which the legislature itself could have invoked, not the evidentiary input of particular individuals describing specific situations or instances. Conversely, a governmental agency serves in an adjudicatory capacity when it determines the rights, duties and obligations of
66 Goss v. Lopez, 419 U.S. 565, 572-75 (1975) (“Due … require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”) quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78 (1972); Beaudreau v. Superior Court, 14 Cal. 3d 448, 458 (1975) (“[I]n every case involving a deprivation of property within the purview of the due process clause, the Constitution requires some form of notice and a hearing.”); Horn v. Cnty. of Ventura, 24 Cal. 3d 605, 610 (1979) (“[D]ue process requires that both appropriate notice and an opportunity to be heard be given to persons whose property interests may be significantly affected.”).
67 Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915); Horn, 24 Cal. 3d at 612-13 (“It is … well settled … that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements.”).
68 Horn, 24 Cal. 3d at 612 (citing Bi-Metallic, 239 U.S. at 445); San Diego Bldg. Contractors Assn. v. City Council, 13 Cal. 3d 205, 208 (1974) disapproved on other grounds by Horn v. Cnty. of Ventura, 24 Cal. 3d 605 (1979).
69 Horn, 24 Cal. 3d at 613.
24
specific individuals as created by past transactions or occurrences.70
Proposed GO-66D involves adjudicative action. Under Proposed GO 66-D, the PRA will
make an individual determination as to whether particular records requests contain confidential
information.71 The PRA is to then decide, on a case-by-case basis, whether to disclose the
information in question.72 This is an individualized action based on the facts peculiar to each
CPRA request. It does not, by contrast, involve the type of broad, generally applicable
rulemaking contemplated by an agency’s legislative or quasi-legislative functions. As such, the
process described in Proposed GO 66-D is clearly adjudicative, and due process applies.
4. Under the California and Federal Constitutions Proposed GO 66-D Fails to
Provide Adequate Due Process
The fundamental requirement of due process “is the opportunity to be heard at a
meaningful time and in a meaningful manner.”73 Both California and federal courts have
acknowledged, however, that due process is a flexible concept that calls for such procedural
protections as the particular situation demands.74
In deciding whether a particular procedure comports with due process under the
California Constitution, the California Supreme Court has outlined four determining factors: (1)
70 Bd. of Sup'rs of Linn Cnty. v. Dep't of Revenue, 263 N.W.2d 227, 239 (Iowa 1978); see also United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 245 (1973) (exploring some differences between adjudicatory and non-adjudicatory actions).
71 Proposed GO 66-D, ¶¶ 4-5. 72 Id. 73 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.”); Ryan v. California Interscholastic Fed'n-San Diego Section, 94 Cal. App. 4th 1048, 1072 (2001) (“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.”); D & M Fin. Corp. v. City of Long Beach, 136 Cal. App. 4th 165, 175 (2006) (same).
74 See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands.”); People v. Ramirez, 25 Cal. 3d 260, 268 (1979) (due process is flexible, citing Morrissey); Nichols v. Cnty. of Santa Clara, 223 Cal. App. 3d 1236, 1245 (Ct. App. 1990) (due process is a flexible concept).
25
the private interest that will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional procedural safeguards; (3) the dignitary interest in fully notifying the individual of the
action and in enabling them to be heard; and (4) the governmental interest, including the function
involved and the fiscal and administrative burdens that additional procedural requirements would
entail.75
The analysis under the federal constitution is nearly identical.76 Factors one, two, and
four are the same; courts merely leave out the analysis of the dignitary interest described in
factor three.77
Although the federal analysis leaves out the dignitary factor described by the California
Supreme Court, in practice, the analysis under both tests is almost always the same.78 Indeed,
some state courts recognizing the Ramirez factors merely reduce the state analysis into a federal
one.79 Other state courts ignore the dignitary factor altogether.80 Still others have held that the
75 People v. Ramirez, 25 Cal. 3d 260, 269 (1979) (establishing these elements). 76 Mohilef v. Janovici, 51 Cal. App. 4th 267, 287 n.18 (1996) (analysis under the state constitution is
nearly identical to the federal analysis). 77 See Gilbert v. Homar, 520 U.S. 924, 924 (1997) (“Three factors are relevant in determining what
process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest.”); Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (establishing these elements).
78 Mohilef, 51 Cal. App. 4th at 287 n.18; see generally, Sara B. Tosdal, Preserving Dignity in Due Process, 62 Hastings L.J. 1003, 1030 (2011) (“[T]he dignitary interest factor … appears … to have little, if any, effect on the sufficiency of procedural protections. Only a few courts have required enhanced procedures….” and “the outcomes under the Ramirez balancing test appear to be no different than under the federal test.”).
79 See, e.g., Brown v. City of Los Angeles, 102 Cal. App. 4th 155, 174 (2002); Cal. Assn. of Private Special Educ. Sch. v. Dep’t of Educ., 141 Cal. App. 4th 360, 376 (2006) (“[N]othing in the state constitutional test … warrants a different result from application of the Fourteenth Amendment due process clause.”).
80 See, e.g., Holmes v. Hallinan, 68 Cal. App. 4th 1523, 1531 (1998) (applying the Eldrige factors while not mentioning Ramirez or the Ramirez factors).
26
Ramirez dignitary factor only applies to natural persons, and does not apply when only an
entity’s due process rights are involved.81
Regardless of the analysis used, notice is paramount. Both federal and California courts
agree that notice must occur before the deprivation of the interest in question, and must be early
enough to give the interested person the adequate ability to respond.82 Without this notice, due
process is denied.83
a) Proposed GO 66-D Violates Due Process Because the Public Records
Attorney Will Fail to Identify Confidential Information and Will
Release it Without Notice or Hearing.
As written, it is impossible for Proposed GO 66-D to comport with due process. Under
Proposed GO 66-D, the PRA makes the determination as to whether documents requested under
the CPRA involve confidential information.84 No other person or body is charged with this task.
When the PRA determines that the information requested involves a lawful claim of
confidentiality, the PRA is required to draft a resolution determining whether to disclose such
81 See, e.g., Today's Fresh Start, Inc. v. Los Angeles Cnty. Office of Educ., 57 Cal. 4th 197, 213-14 (2013) (“Accordingly, the fourth factor plays no role where … due process rights are asserted by an entity rather than an individual.”).
82 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’”) quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original). Bell v. Burson, 402 U.S. 535, 542 (1971) (“[I]t is fundamental that except in emergency situations … that when a State seeks to terminate an interest … it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.”); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978) (The purpose of notice … is to apprise the affected individual of, and permit adequate preparation for, an impending hearing.); Horn, 24 Cal. 3d at 618 (“Due process principles require reasonable notice … before governmental deprivation of a significant property interest”) (emphasis added); California Sch. Employees Ass'n v. Livingston Union Sch. Dist., 149 Cal. App. 4th 391, 397 (2007), as modified (Apr. 12, 2007) (“If the notice permits or requires action by the person notified, the notice must be given in time to reasonably permit action.”).
information.85 When the PRA determines there is no such information, however, the PRA is to
make the records promptly available to the request-maker pursuant to the CPRA.86 This is done
without any notice to the utility or person who submitted the document originally.87
This is problematic. Each document requested from the Commission may contain vast
amounts of information. Some of this information will inevitably be confidential. Given the
multitude of public records requests made, and given the vast amount of data contained within
each document requested, it is unavoidable that the PRA will unwittingly fail to identify
confidential information contained within some documents. Put simply, at some point, it is
beyond reasonable question confidential information will be released on accident. When the
confidential or proprietary information is released, even by accident, the damage is already
done—the utilities’ (and third parties’) interest in the property is already injured.88
This violates due process. As already noted, due process requires notice before the
governmental deprivation of a protected interest.89 But here, notice is only given under Proposed
GO 66-D when the PRA successfully identifies confidential information. No warning is given
when the PRA, in his unilateral view, fails to identify confidential information and releases it to
the request-maker. Thus, the inevitable release of confidential information will come without
any notice to the utilities or to the other real parties in interest. The Commission ought not
proceed with a plan that is certain to deprive parties of their protected interests without any
warning or opportunity to be heard—a clear violation of due process.
Finally, Proposed GO 66-D would likely also fail under a protracted three or four prong
Matthews or Ramirez analysis. Both analyses require an examination of the risk of an erroneous
85 Id., ¶ 5. 86 Id., ¶ 4. 87 Id. 88 Black Panther Party v. Kehoe, 42 Cal.App.3d 645, 656 (1974) (once a record is released under the
CPRA, it is generally available for anyone to inspect; once a document is public it is completely public).
89 Bell, 402 U.S. at 542; Horn, 24 Cal. 3d at 618.
28
deprivation of the interest through the procedures used, and the probable value, if any, of
additional procedural safeguards.90 Here, there is clearly a very high risk that the Commission
will erroneously and inadvertently divulge confidential information. The problem is also
reparable through additional procedural safeguards. Instead of only notifying parties after
confidential information has been identified, the Commission could notify the parties who
submitted information whenever there is a public records request. This would provide interested
and affected parties (as well as the PRA) the opportunity to identify and properly locate
confidential information as well as additional time to meaningfully respond to its potential
dissemination.
Both Matthews and Ramirez also require consideration of the degree of the interest likely
to be deprived.91 This, in turn, must be balanced against the government’s interest in
maintaining the procedures used, including the administrative and financial burden of changing
them.92 In this case, the parties have an intense interest in protecting their confidential
information. The information collected by the commission contains private employee
information, trade secrets, intellectual property, proprietary information, and other protected
records of enormous value. By contrast, if adopted, the Commission’s interest in maintaining the
proposed procedures would be small. The proposed procedures put an incredible burden on the
Commission who will be tasked with identifying confidential information and notifying
interested parties. Changing the procedure to shift this burden onto the parties who submitted the
documents would reduce the administrative and financial burden on the Commission. As such,
the Commission has no strong interest in the proposed procedure, and the private interests at
stake clearly outweigh any interest the Commission has in the procedures at issue.
90 Mathews, 424 U.S. at 335; Ramirez, 25 Cal. 3d at 269. 91 Mathews, 424 U.S. at 341 (“[T]he degree of potential deprivation that may be created by a particular
decision is a factor to be considered in assessing the validity of any administrative decision-making process.”); Ramirez, 25 Cal. 3d 260 at 269.
92 Mathews, 424 U.S. at 347; Ramirez, 25 Cal. 3d 260 at 269; Civil Serv. Assn. v. City & Cnty. of San Francisco, 22 Cal. 3d 552, 561 (1978).
29
In totum, because (1) there is high risk that the proposed procedures will jeopardize
confidential information; (2) because additional procedures would reduce this risk; and (3)
because the Commission has little interest in the procedure suggested, the Ramirez and Matthews
tests clearly indicate that the procedures in question do not comport with due process.
Accordingly, Proposed GO 66-D must be modified or abandoned.
b) Even if the Public Records Attorney Does Identify Documents With
Confidential Information, the Proposed Procedure Does Not
Adequately Satisfy Due Process.
Even if the PRA successfully identifies confidential information, the procedures for
notice and comment under Proposed GO 66-D do not provide sufficient due process.
Under Proposed GO 66-D, when the PRA determines that the information requested is
disclosable but involves a lawful claim of confidentiality, the PRA is required to draft a
resolution determining whether to disclose such information.93 The resolution is then open to
public review and comment.94 Afterwards, the resolution will not appear on the Commission’s
agenda for at least thirty days from the date it is mailed, culminating in a Commission vote.95 At
that point, the Commission may adopt all or part of it, amend or modify it, or set it aside and
prepare its own resolution.96
Because due process depends on the procedures used and the facts of the particular
case,97 there is no direct authority determining whether this procedure sufficiently complies with
the state or federal constitution. Nevertheless, this procedure is still problematic for at least four
reasons, even when the PRA successfully identifies documents containing confidential
information.
93 Proposed GO 66-D, ¶ 5. 94 Id. 95 Id. 96 Id. 97 Morrissey, 408 U.S. at 481.
30
First, even if the Commission successfully identifies confidential information, it may not
be able to identify all of the real parties in interest. Merely notifying the utility or entity that
submitted the document is not enough. Although documents are typically submitted by the
utilities, each document may contain protected information pertaining to a multitude of interested
third parties. Proposed GO D-66, as it stands, provides no clear structure for sorting through a
vast number of immense documents or identifying what parties may have a protected interest in
the information. Indeed, this kind of sorting by the PRA may be impracticable. As such, those
parties who are not identified will not get the notice nor the opportunity to be heard that due
process requires.98
Second, even if the Commission successfully identifies all of the real parties in interest, it
is not clear that they will adequately describe the confidential information to the extent necessary
to put the parties on notice. Due process requires that notice be particular enough to apprise the
parties of the interests at stake.99 GO 66-D, however, merely instructs the PRA to identify
records that contain confidential information.100 Recognizing that a document contains
confidential information is a far cry from identifying what and where that confidential
information is within that document. Without this information, parties will have a difficult time
knowing exactly what interests are at stake and how to respond. This is especially true given the
vastness of some of the documents in question. At the very least, the 30 days that the Proposed
Order gives parties to respond and comment is not enough time for parties to apprise their
interests or to determine how to take action.101
98 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (“[T]he right to be heard before being condemned to suffer grievous loss of any kind … is a principle basic to our society.”); Horn, 24 Cal. 3d at 612.
99 See Gresher v. Anderson, 127 Cal. App. 4th 88, 109 (2005) (“Notice [must be] sufficient to enable a meaningful response is an indispensable element of due process.”).
100 Proposed GO 66-D, ¶ 5. 101 Id.
31
Third, due process requires that notice be particular enough to apprise the relevant parties
of the deprivation at stake.102 The very act of describing some proprietary and confidential
information with particularity, however, might jeopardize the information itself, given that
resolutions under the order are to be public.103 In other words, the Commission may not be able
to identify confidential information and give adequate notice without injuring the very thing it is
trying to protect. At the very least, the resolutions identifying the confidential information and
notifying the relevant parties should be kept private.
Finally, the procedures in Proposed GO 66-D would likely also fail under a protracted
three or four prong Matthews or Ramirez analysis. As already mentioned, these analyses require
an examination of the risk of an erroneous deprivation of the interest through the procedures
used, and the probable value, if any, of additional procedural safeguards.104 As described above,
there is clearly a very high risk that the Commission will not be able to identify all interested
parties, or state the confidential information with enough particularity to put parties on notice.
As such, there is a strong chance that parties’ interests will be erroneously deprived. The
problem is also reparable through additional procedural safeguards. The Commission could
notify the parties who submitted information at the time of the initial receipt of a public records
request. This would give the parties (as well as the PRA) a greater opportunity to accurately
identify confidential information, to identify additional interested parties, and to respond to the
PRA’s resolution. Indeed, the parties who submitted the information are in a better position to
determine whether confidential information is involved and whose interests are at stake.
The Matthews and Ramirez test also require considering the degree of the interest likely
to be deprived.105 This must be balanced against the government’s interest in maintaining the
102 See Gresher, 127 Cal. App. 4th at 109; Raper v. Lucey, 488 F.2d 748, 753 (1st Cir. 1973); Krentz v. Robertson, 228 F.3d 897, 906 (8th Cir. 2000).
103 Proposed GO 66-D, ¶ 5. 104 Mathews, 424 U.S. at 335; Ramirez, 25 Cal. 3d at 269. 105 Id.
32
procedures used, including the administrative and financial burden of changing them.106 In this
case, the parties—including non-utilities—have an intense interest in protecting their
confidential information. The information collected by the commission contains private
employee information, trade secrets, intellectual property, proprietary information, and other
protected records of enormous value, not just from utilities, but from dozens of third parties. The
value of this information cannot be overstated. By contrast, if adopted, the Commission’s
interest in maintaining the proposed procedures would be small. If anything, the proposed
procedures put an incredible burden on the Commission who will be tasked with identifying
confidential information and notifying interested parties. In fact, changing the procedure so that
the burden is shifted to the parties who submitted the documents would reduce the administrative
and financial burden on the Commission.
Given (1) the high risk that the proposed procedures will jeopardize confidential
information; (2) that different procedures would easily reduce this risk; and (3) that the
Commission’s administrative and financial burdens would be reduced by altering the procedures
suggested, the Ramirez and Matthews tests clearly indicate that the procedure in question does
not comport with due process. As such, Proposed GO 66-D must be modified or abandoned.
E. Retroactive Application of Proposed GO 66-D Would be Unlawful.
Whether intended or not, the language of Proposed Order GO 66-D raises concerns about
documents to which the Commission has already applied confidential treatment.
Alteration of the confidential status of documents previously provided to the Commission
by public utilities or other affiliated entities would constitute an impermissibly retroactive
regulation. A retroactive law is one that “affects rights, obligations, acts, transactions and
conditions which are performed or exist prior to the adoption of the statute.”107 It is a “law …
106 Mathews, 424 U.S. at 347; Ramirez, 25 Cal. 3d 260 at 269; City & Cnty. of San Francisco, 22 Cal. 3d at 561.
107 Myers v. Philip Morris Companies, Inc., 28 Cal. 4th 828, 839 (2002).
33
which relates back to a previous transaction and gives it a different legal effect from that which it
had under the law when it occurred.”108
Although “retrospective statutes are not per se invalid, if the law deprives a party of a
vested or substantive right it will not be upheld.”109 Here, the utilities and interested parties have
vested rights to maintain the confidential status of information and records previously submitted
to the Commission. A vested right is an interest that is proper for the state to recognize and
protect, and cannot be deprived arbitrarily without injustice.110 The public disclosure of
documents previously submitted by Respondents under the promise of confidentiality would
constitute an unjust deprivation of Respondents’ rights to protect confidential records.
III. RESPONSES TO THE COMMISSION’S SPECIFIC QUESTIONS
In Section 4 of the OIR the Commission requested that interested parties address three
specific questions. Those questions and the Respondents answers are set forth below.
1. Is Proposed GO 66-D consistent with the Legislature’s intent to make agency records
accessible to the public?
Proposed GO 66-D is not consistent with the Legislature’s intent to make agency records
accessible to the public. The CPRA identifies specific statutes that exempt certain records from
disclosure. Section 583 is a statute that the CPRA identifies as exempting records from
disclosure. Thus, it was the Legislature’s intent to make agency records accessible to the public
so long as accessibility is consistent with Section 583. Proposed GO 66-D is not consistent with
Section 583 because it eliminates the procedural guarantees and due process rights that the
108 Fullerton Union High School Dist. v. Riles, 139 Cal. App. 3d 369, 386 (1983). 109 Id. (citing Westfield-Palos Verdes Co. v. City of Rancho Palos Verdes 73 Cal. App. 3d 486, 493
(1977)). 110 American States Co. v. Johnson, 31 Cal. App. 2d 606, 613-14 (1939).
34
Legislature afforded in Section 583. Accordingly, Proposed GO 66-D is not consistent with the
Legislature’s intent to make agency records accessible to the public.111
2. Does Proposed GO 66-D improve the public’s access to public records and increase
transparency of the Commission’s California Public Records Act (“CPRA”)
procedures without compromise of the applicable laws and protection of confidential
information?
Proposed GO 66-D does not improve the public’s access to public records and increase
transparency of the Commission’s CPRA procedures without compromise of the applicable laws
and protection of confidential information.
First, Proposed GO 66-D does not improve transparency because no notice is provided to
stakeholders if a Public Records Attorney (PRA) unilaterally decides that information is not
subject to a lawful claim of confidentiality. Instead, the PRA just makes the information
available to the public without even informing the party that claimed confidentiality that the
information was disclosed. By rejecting a claim of confidentiality without the notice or
opportunity to defend, Proposed GO 66-D decreases the transparency of the Commission’s
CPRA procedures because the determination of confidentiality is made without the knowledge or
input of any other party.
In addition, Proposed GO 66-D’s failure to provide for notice and hearing for the claim of
confidentiality violates the due process rights of utilities and those parties that maintain an
interest in the confidentiality of the information - which includes the public and utility customers
- and is contrary to the rights provided by Section 583.
Accordingly, Proposed GO 66-D does not improve access to public records because it
decreases transparency and compromises the afforded rights of due process and Section 583.
111 See Section II for a detailed legal analysis.
35
3. What categories of documents should the Commission disclose, if any, in response to
a CPRA request without a vote of the Commission?
Respondents believe that the Commission should not disclose any document or
information that has been claimed to be confidential unless there has been a vote of the
Commission or is otherwise disclosed in a manner consistent with Section 583.
IV. CONCLUSION
Based upon the foregoing arguments, Respondents oppose the adoption of the Proposed
GO 66-D as currently drafted, and respectfully request that the Proposed Order be abandoned. In
the alternative, Respondents request that the Commission hold ALJ supervised workshops to
allow all interested parties an opportunity to discuss the categories of confidential information at
issue, as well as decide upon a process that adequately protects the confidentiality of
information, release of which would harm utilities, customers and/or the public. Respectfully submitted, Patricia A. Cirucci Javier C. Rivera Carol Schmid-Frazee /s/ Javier C. Rivera By: Javier C. Rivera Attorneys for SOUTHERN CALIFORNIA EDISON CO. 2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770 Telephone: 626-302-6544 Facsimile: 626-302-6997 E-mail: [email protected]
Steven D. Patrick Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2954 Facsimile: (213) 629-9620 E-mail: [email protected]
36
Jackson D. McNeill Attorney for SOUTHERN CALIFORNIA GAS COMPANY and SAN DIEGO GAS & ELECTRIC COMPANY 555 West Fifth Street, Suite 1400 Los Angeles, California 90013 Telephone: (213) 244-2977 Facsimile: (213) 629-9620 E-mail: [email protected]
Kyle O. Stephens Attorney for SOUTHWEST GAS CORPORATION 5241 Spring Mountain Road Las Vegas, Nevada 89150-0002 Telephone: 702-876-7293 Facsimile: 702-252-7283 E-mail: [email protected]
Dated: December 22, 2014
Exhibit A
A-1
Exhibit A
Examples of EE Customer Confidential/Proprietary Data Provided to Energy Division
Introductory Note In order to protect the confidential, proprietary, trade secret, and private information contained within documents submitted to the Commission, that information is not explicitly provided here. What follows, instead, is a narrative description of just one type of process that requires substantial confidential information to be submitted to the Commission. Specifically, this narrative describes what kind of information is required for The Custom Project Review Process. Background For & Data Required By The Custom Project Review Process The Commission requires the IOUs to provide extensive customer-specific, proprietary data for various Energy Efficiency processes. These requirements are made under the exercise of the Commission’s broad subpoena power, and The Custom Project Review Process112 is just one of the many Energy Efficiency processes which require such data. SoCalGas and SDG&E identify this information as “Confidential Information Pursuant to G.O. 66-C and PUC Code Section 583” when submitting this data to the Commission. Among other things, this particular process requires:
Each IOU shall keep a complete up-to-date electronic archive of all custom measures and projects. Each project should be added to the Archive (in the Commission’s control) as soon as possible after either identified in the pre-application stage or the date of the customer’s application to the IOU, whichever is earlier. Each project should be assigned a unique identifier that shall not be re-used or re-assigned to other projects. The IOUs shall provide a summary list of all projects, in pre-application stage and application stage, in their CMPA. Energy Division will provide the utilities with the format of the summary list. The summary list shall identify each project using its unique identifier and provide a link to the detailed files of each project. The summary list shall also reflect the date of the most recent entry into each project. The summary list shall include for each project the following (Energy Division and the IOUs will work out details of the meaning and specifics of each item below):
• The customer type • The project type
112 The Custom Project Review Process as adopted by the Commission in D.11-07-030 Attachment B- Energy Division Process for Review of Investor Owned Utility Custom Measure Ex Ante Values
A-2
• Industry Type • Status (pre-application, application received, application in review,
agreement signed, completed, paid, claimed, etc.) • For pre-application stage projects, a best guess at probability the project will
become an application (unknown, very low, low, medium, high, very high; or a percentage probability 0-100% for none to definite) with this status updated as new information becomes available)
• Project location (address) • Utility contact person (Primary IOU review contact and, if appropriate,
primary IOU customer interface contact such as marketing representative) • Customer segment
• Equipment or process involved • General description of the proposed project and its energy saving premise • Estimated ex ante energy savings • the target date when a customer agreement is expected to be issued for
customer signature (Agreement Target Date)
If the project is selected for review by ED Staff, additional information is required:
• Documentation to support Baseline assignment (Code or Standard requirement, Early Retirement, Retrofit, Replace On Burnout, industry standard practice, CPUC policy, etc.)
• Existing system controls and operating status description • Existing system output capacities – current output and maximum/design
capacity • Pre-installation inspection report • Post-installation inspection report • Proposed modifications with schematic as applicable • Preliminary savings calculations and supporting data with documentation to
ensure replicability • Manufacturer’s cut sheets when used to estimate ex ante savings or when
needed to ensure replicability • Fuel switching considerations and any required analysis per CPUC policy
regarding fuel switching projects (see Energy Efficiency Policy Manual) • Other fuel savings and/or load increases resulting from the project • Heating, Ventilation, and Air Conditioning (HVAC) interactive effects values
and methods used to develop those values, when measures cause a change in HVAC system loads
• Interactions between multiple measures that act to increase or decrease savings relative to a measure stand-alone savings estimate
• Pre/post production output data when used in savings calculations and the source of such records
• Billing history - one-year pre installation, with interval data required when available; when ex ante estimated values rely upon a per-unit production changes based on multi-year production data, corresponding billing histories are required
A-3
• IOU or implementer program manual (a single archive of these documents should be referenced rather than including the documents in each project archive)
• M&V plans, reports and raw data archives, where applicable • EUL/RUL value, analysis or source
Those projects which Energy Division selects for review will have their complete documentation from the IOU CMPA placed into an Energy Division Review CMPA which, with the Utility Custom Project Summary List, will be housed on an internet-accessible website that meets reasonable security and legal requirements. The Energy Division will be responsible for establishing and maintaining that website.113
In order to participate in the programs, customers must agree to provide all requested information to Commission Staff. This is done so that the Staff may facilitate review and approval of the project, as well as conduct the evaluation, measurement & verification procedures necessary to verify the energy savings from the installed EE equipment. This condition is contained in the customer application forms. If customers do not agree to allow access to their data, customers will be denied participation in the program and cannot access the financial rebates, incentives or financing that the programs offer. As stated in D.10-04-029 (at page 36):
(W)e emphasize to both IOUs and customers that our energy efficiency program relies on accurate information about programs and we expect all participants to adhere to evaluation requirements.
In turn, this requirement is conveyed to customer participants through SDG&E’s 2013-14 Statewide Customized Retrofit Offering Procedures Manual for Business (at page 1-3), which states:114
CPUC Project Review - If the CPUC requests review of your project, the Utility will provide the CPUC with all of the information requested without further notification to you. If you refuse to allow the CPUC, its staff or its contractors and/or consultants to have access to your data, you will not be allowed to participate, and you will be ineligible to receive any program incentives. In the event your project is selected for review, the Utility will mark your data as confidential before submitting your files to the CPUC in accordance with California Public Utilities Code Section 583 and CPUC General Order 66-C.
Put simply, participants are required, without exception, to submit vast volumes of information in order to enjoy the benefits of the program.
113 Id. 114 The Manual can be accessed on SDG&E’s website:
To date, SDG&E and SoCalGas have 407 and 355 CMPA projects to date, respectively. Each project requires multiple data files to be submitted to Energy Division Staff through the CMPA. This data is maintained indefinitely by ED Staff. The data submitted includes, but is not limited to, usage data, billing data, operational data, marketing plans, e-mail correspondences, and (sometimes maps) illustrating the location of facilities. For federal and state facilities, sensitive information may be included as part of the Energy Division requested data in order to fully understand and estimate the savings benefits from their projects. All of this data, together with the data of other projects across the four IOUs, are contained in the CMPA. The documentation for each customer involves a wide variety of information with different levels of complexity and functionality. This is information that most lay persons would not necessarily understand; nor would a lay person appreciate how seemingly unrelated data could harm the customer when incorporated together by a knowledgeable outsider. Indeed, this information is valuable; the data provided often contains information about customer premises, production information, etc. that could give knowledgeable competitors an advantage.
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA
Order Instituting Rulemaking to Improve Public Access to Public Records Pursuant to the California Public Records Act
)))
Rulemaking 14-11-001 (Filed November 6, 2014)
CERTIFICATE OF SERVICE
I hereby certify that, pursuant to the Commission’s Rules of Practice and Procedure, I have this day served a true copy of OPENING COMMENTS OF SOUTHERN CALIFORNIA EDISON COMPANY (U 338-E), SOUTHERN CALIFORNIA GAS COMPANY (U 904-G), SAN DIEGO GAS & ELECTRIC COMPANY (U 902-M) AND SOUTHWEST GAS CORPORATION (U 905-G) ON RULEMAKING 14-11-001 AND PROPOSED GENERAL ORDER 66-D on all parties identified on the attached service list R.14-11-001. Service was effected by one or more means indicated below:
☒ Transmitting the copies via e-mail to all parties who have provided an e-mail address.
☒ Placing the copies in sealed envelopes and causing such envelopes to be delivered by hand
or by overnight courier to the offices of the ALJ(s).
ALJ Rafael L. Lirag CPUC, Div. of ALJ's 505 Van Ness Ave, Room 5115 San Francisco, CA 94102
Executed this December 22, 2014, at Rosemead, California.
/s/ Raquel Ippoliti Raquel Ippoliti
Project Analyst SOUTHERN CALIFORNIA EDISON COMPANY
2244 Walnut Grove Avenue Post Office Box 800 Rosemead, California 91770
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