CEC Calls CPUC Secrecy Proposal 'Excessive' The California Energy Commission sharply challenged the California Public Utilities Commission to make more information on energy decisions public. A proposed CPUC decision on data confidentiality would perpetuate "a decisionmaking environment that is shrouded in secrecy," the Energy Commission maintained in written comments June 19. The Energy Commission said the draft CPUC decision would obstruct public participation in energy policy making in California, denying the press and even the Legislature the information they need to conduct "important oversight functions," stated Caryn Holmes, CEC staff counsel. The comments mark the latest shot in a continuing standoff between the sister agencies. The Energy Commission has long maintained that to effectively plan California's energy future - from new generation plants and transmission lines to energy-efficiency measures - utilities must make public a wide variety of data, including energy demand and supply forecasts. Consequently, the Energy Commission has pressed to make public even energy procurement data, considered confidential by utilities, at least in an aggregated or "masked form" that protects utilities yet allows meaningful public participation in energy policy. Stung by price manipulation during the state energy crisis of 2000-01, the CPUC has taken a different tack. It cites the need to comply with unique statutory requirements not applicable to the Energy Commission - namely, its duty to protect the public from unreasonable prices under the state Public Utilities Code. The proposed decision by CPUC commissioner Dian Grueneich would maintain some significant restrictions on public access to information that utilities submit to the agency. "The statutes governing our treatment of confidentiality - which we note are different from our sister agency the California Energy Commission - recognize that in some instances (such as 'market sensitive' information relating to electric procurement that passes a materiality standard), confidential treatment of data may not only be allowed, but may be required to carry out our statutory and constitutional duties," wrote Grueneich in her proposed decision. However, because of the public's overriding interest in achieving the renewables portfolio standard, information regarding green energy procurement would be treated more liberally under the proposed decision. Grueneich's proposed decision, which would clearly spell out the CPUC's confidentiality policy, is in response to SB 1488, enacted in 2004. In that bill, the Legislature ordered the CPUC to review, but not necessarily change, its confidentiality policy with an eye toward increasing the public's access to energy information in California. The resulting proposed decision includes a long "matrix" listing various types of information that energy utilities submit to the commission. For each, it outlines proposed terms of public access. In the matrix, for instance, investor-owned utility bundled long and short capacity positions would be kept confidential for five years. This information shows if utilities have either an excess or shortage of power generation capacity at their fingertips, either directly owned or under contract. The proposed decision, Holmes claimed, would go beyond the CPUC's statutory requirement to keep "trade secrets" confidential by also offering protection to "market sensitive" information the CPUC worries power sellers could use to bid up the price of electricity. "In reaching this conclusion," wrote Holmes, "the proposed decision makes no attempt to interpret this statutory provision in a manner that is consistent with the Public Records Act or the constitutional language directing agencies to narrowly construe statutes limiting the right to access public records." Moreover, Holmes wrote, the proposed decision does not explain how information that it would hold confidential could potentially affect the price of electricity. Instead of offering blanket protection to information, the decision should require utilities to show why information might affect prices and therefore be kept confidential, the CEC attorney wrote. In its 2005 Integrated Energy Policy Report, for instance, the Energy Commission released such data on an aggregated basis, a move legally challenged by utilities but ultimately upheld in the Sacramento Superior Court (Circuit, Feb. 24, 2006). Utilities commenting on the draft decision lauded the CPUC's effort to strike a balance between access to information and the need to guard against price manipulation. However, they urged the CPUC to tighten certain provisions, particularly restrictions on access to information that could make public their net energy needs. The Utility Reform Network sided with the utilities on this point. The Office of Ratepayer Advocates generally lauded the proposed decision but asked that it be clarified to ensure that it has the same access to confidential data as CPUC staff. The Independent Energy Producers recommended that the proposed decision be modified to allow "trade associations with market participants as members to participate fully in its proceedings." IEP, which represents independent generators, said that the CPUC could do this "by developing a model protective order" similar to one used by the Federal Energy Regulatory Commission. It allows "trade associations the same access to confidential information that other parties receive, subject to nondisclosure provisions that guard against disclosure of information that might lead to the exercise of market power," IEP wrote.