4788131 Public Service Commission - Notice of Final Rulemaking - Formal Case No. 1108, In the Matter of the Investigation of the Public Service Commission into its Rules of Practice and Procedure Pertaining to Confidential or Proprietary Information

PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA

 

NOTICE OF FINAL RULEMAKING

 

FORMAL CASE NO. 1108, IN THE MATTER OF THE INVESTIGATION OF THE PUBLIC SERVICE COMMISSION INTO ITS RULES OF PRACTICE AND PROCEDURE PERTAINING TO CONFIDENTIAL OR PROPRIETARY INFORMATION

 

            1.         The Public Service Commission of the District of Columbia (“Commission”) hereby gives notice pursuant to Sections 34-802 and 2-505 of the District of Columbia Code[1] of its final rulemaking action taken on February 20, 2014, adopting amendments to Section 150 (“Confidential or Proprietary Information”) of Chapter 1, “Rules of Practice and Procedure” of Title 15 of the District of Columbia Municipal Regulations (“DCMR”).

 

2.         The proposed amendments modify Section 150 to clarify the Commission’s treatment of information claimed by a party to be confidential, including procedures for challenges to claims of confidentiality by other parties and procedures to be applied in the event the Commission requires a party to substantiate its claim of confidentiality for certain information.  The proposed amendments were published in a Notice of Proposed Rulemaking (“NOPR”) for public comment in the D.C. Register on October 25, 2013.[2]  Comments were filed by Verizon Washington, DC Inc. and Washington Gas Light Company.  Reply Comments were filed by the Office of the People’s Counsel.

 

3.         On February 26, 2014, the Commission issued Order No. 17390 adopting the proposed amendments to Section 150, with the exception of Section 150.5(b), as final, effective upon publication of this Notice of Final Rulemaking (“NOFR”) in the D.C. Register.

 

CHAPTER 1             THE PUBLIC SERVICE COMMISSION RULES OF PRACTICE AND    PROCEDURE

 

SECTION 150           CONFIDENTIAL OR PROPRIETARY INFORMATION

 

150.1               Any materials submitted by a party which it claims are confidential or proprietary shall be filed under seal and shall not be used except in connection with the proceeding in which the material is filed. 

 

150.2               All submissions filed under seal shall include a request for confidential or proprietary treatment, including justification for such request.  Such requests shall state with specificity the grounds upon which the request is based. 

 

150.3               All requests for confidential or proprietary treatment shall be presumed granted unless the Commission on its own, or in response to a Confidential/Proprietary Information Determination, determines that confidential or proprietary treatment is not justified.  In making that determination, the Commission shall follow the procedures set forth in Section 150.7 or Section 150.8 of this chapter.

 

150.4               All submissions filed under seal shall be made available only to parties and persons who have signed an appropriate confidentiality or proprietary agreement with the party claiming that its information is confidential or proprietary.  Information obtained pursuant to the execution of confidentiality or proprietary agreement shall be held solely for use in or in preparation of filings, including briefs, comments, documents, exhibits, data responses, cross-examination, other pleadings, petitions for reconsideration or appeals in the regulatory proceeding in which the information was originally obtained.

 

150.5               If any party intends to use or actually uses confidential or proprietary information in briefs, comments, testimony, exhibits, data responses, cross-examination, or other documents to be filed in a case in which the information is obtained pursuant to a confidentiality or proprietary agreement, the following shall apply:

 

(a)        A confidential version of the briefs, comments, testimony, exhibits, data responses, or other documents containing the alleged confidential or proprietary information shall be sealed and delivered to the Commission Secretary by that party and to those other parties who have signed an appropriate confidentiality or proprietary agreement.  The pages containing the confidential or proprietary information shall be clearly marked and the cover of the filings shall indicate that confidential or proprietary information is contained inside.  An original and fifteen (15) copies of the confidential or proprietary document shall be filed under seal with the Commission Secretary in non-rate proceedings and an original and twenty-five (25) copies in rate proceedings;

 

(b)        [Reserved]

 

(c)        Cross-examination by any party involving information which another party alleges to be confidential or proprietary shall be conducted during proceedings which shall be closed to all those who have not signed an appropriate proprietary or confidentiality agreement; provided, that there has been no prior Commission determination that such information is not confidential or proprietary.  Two transcripts of the proceeding shall be prepared and filed with the Commission Secretary; one that shall include the confidential or proprietary information and one that shall exclude the confidential or proprietary information.  The transcript of the proceeding containing the confidential or proprietary information shall be kept under seal; and

  

(d)       If any party challenges the appropriateness of a claim that information is confidential or proprietary, the procedures set forth under Section 150.7 of this chapter shall apply.

 

150.6               If a party who has not signed a confidentiality or proprietary agreement with the party claiming its information is confidential or proprietary desires to obtain confidential or proprietary information from a party that has the information, either through data requests, during cross-examination, or through sealed briefs, comments, testimony, exhibits, or other such documents, the requesting party shall:

 

(a)                Contact the party claiming its information is confidential or proprietary for an appropriate confidentiality or proprietary agreement, which shall be signed and returned to the party; or

 

(b)               File with the Commission for a Confidential/Proprietary Information Determination under Section 150.7.

 

150.7               If at any time during a Commission proceeding a party wishes to challenge a claim of the party who asserts that its information is confidential or proprietary, the following procedures shall apply:

 

(a)                The party challenging the claim that information is confidential or proprietary shall file with the Commission for a Confidential/Proprietary Information Determination, which shall consist of a request for a ruling on whether the particular information is confidential or proprietary, hereafter referred to as “Confidential/Proprietary Information Determination Request” (“CPID Request”).  The CPID Request shall be filed with the Commission Secretary and served on the party claiming that the information sought is confidential or proprietary and on the signatories to the confidentiality or proprietary agreement.  Parties to the proceeding who have not signed the confidentiality or proprietary agreement shall only receive notice from the filing party that a CPID Request has been filed in lieu of a copy of the filing;

 

(b)               When any CPID Request has been filed, the party claiming that its information is confidential or proprietary shall deliver under seal all of the relevant documents to the Commission Secretary for an in camera inspection by the Commission and shall also deliver to the Commission Secretary the relevant confidential or proprietary agreements signed by each party permitted access to the alleged confidential or proprietary information;

 

(c)                The party claiming that its information is confidential or proprietary shall, within five (5) days after the filing of the CPID Request, file an initial brief stating in detail the basis of its claim.  Within five (5) days thereafter, the party that filed a CPID Request shall file a brief in response to the initial brief of the party claiming that its information is confidential or proprietary.  Within three (3) days after the filing of the brief in response, the party claiming that its information is confidential or proprietary may file a reply brief.  If either the initial or reply brief of the party claiming that its information is confidential or proprietary, or the brief in response of the party challenging the claim, uses information that allegedly is confidential or proprietary, those briefs shall be filed under seal.  In that instance, the parties shall not be required to file a public version of their briefs;

 

(d)               The burden of ultimately persuading the Commission that the subject information is confidential or proprietary is upon the party claiming that its information is confidential or proprietary; and

 

(e)        A party shall not make public information regarding the disputed confidential or proprietary information until a ruling is received from the Commission.  Following the ruling, the information shall be made available only in accordance with the Commission’s ruling; provided that an application for reconsideration of the Commission’s order filed by the party claiming that the information is confidential or proprietary will act as a stay of such order pending reconsideration.

 

150. 8              The Commission, in any proceeding before it, may, at its option, elect to require that a party claiming that its information is proprietary or confidential substantiate its claim.  If the Commission so elects, then the following procedures shall apply:

 

(a)        The Commission shall issue an order notifying the party claiming that its information is confidential or proprietary and any signatories to the confidentiality or proprietary agreement that the party must substantiate its claim before the Commission; 

 

(b)        The party claiming that its information is proprietary or confidential  shall file an initial brief stating in detail the basis of its proprietary or confidential claim within five (5) days of the notification;

 

(c)        Within five (5) days thereafter, any party may file a brief in response to the initial brief filed by the party claiming that its information is proprietary or confidential;

 

(d)       Within three (3) days of that filing, the party claiming that its information is confidential or proprietary may file a reply brief.  If either the initial or reply brief of the party claiming that its information is confidential or proprietary, or the brief of any other party, uses information that is proprietary or confidential, those pleadings shall be filed under seal.  In that instance, the parties shall not be required to file a public version of their briefs;

 

(e)        The burden of ultimately persuading the Commission that the subject information is confidential or proprietary is upon the party claiming that its information is confidential or proprietary; and

 

(f)        A party shall not make public information regarding the disputed confidential or proprietary information until a ruling is received from the Commission.  Following the ruling, the information shall be made available only in accordance with the Commission's order; provided, that an application for reconsideration of the Commission's order filed by the party claiming that its information is confidential or proprietary will act as a stay of such order pending reconsideration.

 

150.9               If an appeal is taken from a final Commission order in the proceeding, all information under seal at the time shall remain under seal until the appellate court issues a final order on the appeal.

 

150.10             The parties retain the right to object to the admissibility of any specific confidential or proprietary information on any proper grounds, including relevancy or materiality to the proceeding.

 

150.11             When the Commission’s order in the proceeding is final and no longer subject to appeal, the sealed portion of the Commission’s record shall be retained under seal by the Commission.  All parties and persons having material furnished pursuant to a confidentiality or proprietary agreement (including, but not limited to, notes or records made from such material) or copies of confidential documents kept under seal by the Commission during the course of such proceeding (including, but not limited to, briefs, comments, testimony, exhibits, transcripts, and data responses) shall, upon request by the party claiming that its information is confidential or proprietary, deliver all such material to that party.

 

150.12             Access to the documents kept under seal by the Commission shall be limited to the Commission, its staff, its agents, and those parties to the proceeding in which the request is made who have executed a confidentiality or proprietary agreement.

 

150.13             All persons or parties executing a confidentiality or proprietary agreement shall be responsible for the protection of the confidential or proprietary information in their control.

 

 

 

 

 

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[1]               D.C. Official Code § 34-802 (2001 ed.); D.C. Official Code § 2-505 (2001 ed.).

 

[2]               60 DCR 14985-14990 (October 25, 2013).