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Home My WebLink About20210312Motion to Compel Public Disclosure.pdfJAI\I M. BENNETTS ADA COUNTY PROSECUTING ATTORNEY .; - lL.:: iV[i* .i'Ll iiiil it EH lfi:3S .". , :, I "*, ,;S I ,i-. ' ': ' " ''l:.''"';*1-t5a'. ... :.'., iSEr-i.,,LORNA IC JORGENSEN JOHN C. CORTABITARTE Deputy Pro secuting Attorneys Civil Division 200 W. Front Street, Room 3l9l Boise,lD 83702 Telephone: (208) 287 -77 00 Facsimile: (208) 287 -7 7 19 ISB Nos. 6362 &9794 Email : lj orgensen@adacountv. id. gov Attorneys for Intervenor Ada County BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN TT{E MATTER OF APPLICATION OF SUEZ WATER IDAHO INC. FOR AUTHORITY TO INCREASE ITS RATES AND CHARGES FOR WATER SERVICE IN THE STATE OF IDAHO Case No. SUZ-W-20-02 ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONT'IDENTIAL, PROPREITARY AI\[D TRADE SECRET In response to the Public Utilities Commission staffs discovery request number 6, and7l, Suez responded with a blanket marking of the documents as "confidential, proprietary, and trade secret information protected from public inspections, examination, or copying under ldaho Code sections 74-106, 107, and 48-801'with no further explanation. In response to Ada County's discovery requests, Suez again responded by making a blanket assertion that the responses were confidential, proprietary, and trade secrets pursuant to the public records act and the trade secrets act. Suez has failed repeatedly to specifically explain why the aforementioned documents are marked as "confidential, proprietary, and trade secret information." ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSI.]RE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTI.AL, PROPRIETARY AND TRADE SECRET _ PAGE I Idaho Public Utilities Commission Rule 31.01.01.004 states: "Except as provided by statue and Rules 26, 52, 67, 233, and 287, all materials filed with the Commission pursuant to these rules and all materials issued by the Commission pursuant to these rules are public documents subject to inspection, examination and copying." According to Rule 31.01.01.004.067 trade secrets, as defined by the public records act, and confidential information exempt under sections 74-104 through 109 of the Public Records Act are exempt from disclosure. The entity claiming the exemption is required to cite "the specific grounds and legal authority for that assertion." Id. Suez has failed to provide the specific grounds for these assertions. I. TI{E PUBLIC RECORD ACT PRESUMPTIONS AI\D BURDEN OF PROOF As part of the rate increase case, the Commission Staff requested Suez o'to provide copies of the cost/benefit analysis, internal rates of retum, or similar analysis for each capital project included in the Company's response to Request No. 5." Suez responded to this request with the examples of several projects and the underlying rationale for the projects. The entire response was marked as confidential, proprietary and a trade secret. After reviewing the documents, it is very difficult to ascertain why any of the records are being hidden from the public's inspection, review and copying. Similarly, the Commission Staff requested Suez "provide the source documents that show the additions and refunds impacting the advance account for years 2016 through June 30, 2020. .. Please provide a schedule of Advances for Construction showing project names, dates, amounts and accounts used. Suez responded with 1,895 pages and claimed that all of the pages were'oconfidential, proprietary or a trade secret." Again, after reviewing the 1,895 pages of documents, it is very difficult to ascertain why any of these documents are not accessible forpublic inspection, review and copying. Suez provided a similar response to Ada County's request for production of documents. Again, a review of the 505 pages of supposedly confidential, proprietary ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTATN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET _ PAGE 2 and trade secret documents leaves one puzzled as to why such a claim is being made, especially when these documents are being used as a justification for a rate increase. The Idaho Public Records Act ensures that government records are accessible to the public for review, inspection and copying. The Idaho Supreme Court has interpreted the statute's language as "very broad scope" and must be interpreted to favor access. Dalton v. Idaho Dairy Products Commission, 107 Idaho 6, ll , 684 P.2d 983, 988 ( 1984). By statute there is a presumption that all records of state and local agenciesl are public records and open for inspection, and the Public Utilities Commission, as an agency, must presume so under I.C. $ 74-102(l) and narrowly construe every exemption to the disclosure presumption. Federated Publications, Inc. v. Boise CW, l2S Idaho 459, 463,914 P.2d 21,25 (1996). The Commission should order disclosure of Suez's documents unless it is "obvious" that the records are exempt from disclosure. 1d. See also Wade v. Taylor,156 Idaho 91,97,320P.3d 1250, 1256 (2014). In order for the Commission to allow Suez to withhold the records from public inspection, review, and copying, Suez bears the burden to show cause and prove that withheld records actually fit within a narrowly construed exemption. Bolger v. Lance, 137 Idaho 792, 796,53 P.3d 121 l, l2l5 (2002). This burden can only be met by making a "specific demonstration" proving that the exemption it relied on truly applies to the requested records. Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 504 n.3,248 P3d 1236, 1239 n.3 (2011). The Commission must order disclosure if the agency does not meet its burden. See Dalton, I 07 Idaho at I 0, 684 P .2d at 987 . I State agency includes "every state officer, department, division, bureau, commission and board" with the only exception being the state militia and the historical society library and archives. Idaho Code $ 74-l0l(15). See also Office of the Attorney General Idaho Public Records Law Manual. ADA COLTNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET _ PAGE 3 N. ARGUMENT 1. Suez's Unsupported Vague Exemptions Violate the Public Records Act The Public Records Act and the Commission rules mandate that a specific reason for the claim of an exemption and the statutory authority for such claim of exemption be applicable in each case. Suez has asserted the vague unspecified exemptions of confidential, proprietary and trade secret and offered no explanation for the sweeping exemptions it asserts. This is contrary to the Idaho Supreme Court's ruling that the entity claiming the exemption has the burden to show cause and prove that withheld records actually fit within a narrowly construed exemption to the Act. Bolger v. Lance,l37 Idaho 792,796,53 P.3d l2ll,l2l5 (2002). Suez is asking the public to pay higher rates because ofseveral projects. These projects were based on assumptions outlined in the documents that Suez is attempting to keep hidden from public inspection. Ada County would like to file portions of these documents as part of Ada County's testimony in this rate case so interested members ofthe public can inspect the documents and determine whether there was a sufficient basis for the projects, and the requested rate increase. Ada County is well aware that it can file the documents under seal; however, because there is no reasonable justification for keeping the documents out of the public purview, the "confidential, proprietary and trade secret" designation of the documents should be removed until such time as Suez meets its birrden of being specific regarding why the documents are exempt from public inspection. If Suez cannot provide justification, the documents should be disclosed to the public as part ofthis rate case. In addition, the responses to request number 7l contains reimbursement records and multiple copies of a "special facilities" agreement as well as orders from the Commission. Furthermore, there are emails, with multiple parties, between Suez and a private entity, and various ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET - PAGE 4 consultants. Again it is difficult to understand how these documents are confidential, proprietary and contain trade secrets. Suez is asking ratepayers to pay more for its services and those paying the bill deserve to have an accounting of how Suez has expended funds prior to a requirement that ratepayers pay more. Because there is no reasonable justification for keeping the documents out of the public purview, the confidential designation of the documents should be removed until such time as Suez meets its burden of being specific regarding why the documents are exempt from public disclosure. If Suez cannot provide justification, the documents should be available to the public as part of this rate case. Finally, in response to Ada County's request for production of documents, Suez deems 505 pages as "confidential, proprietary and trade secret." Again, the documents provided disclose who benefits from Suez's projects, as well as the customers that are not beneficiaries but are paying the project costs. Again, there are questions related to the underlying assumptions for the projects that Suez chose to embark on. Suez has not met its burden regarding being specific regarding why the public is not allowed to view the documents as part of this rate case. Absent such justification, the documents should be part of the documents that the public can review during this rate case. [I. CONCLUSION Without the Commission making determination regarding whether the documents qualify as trade secrets, are confidential and/or proprietary, the Commission should not make a decision in this rate case. This is similar to the Idaho Supreme Court's decision in Lo Bella l/ito, LLC v. Shuler,l5S Idaho 799,353P.3d,420, (2015), where the Court determined that summary judgment should not be granted when the factual issues of whether documents are confidential or constitute a trade secret preclude the granting of summary judgment. Ada County requests that the Commission determine whether the designation of "confidential, proprietary, and trade secret" is ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET _ PAGE 5 appropriate for the aforementioned documents by requiring Suez to meet its burden to justiff why the public cannot view the documents as part of this rate case. Ada County would like the public to have access to these documents so that the public can make an informed decision regarding whether the rate increase is justified and cannot do so as long as the documents are hidden under the vague veil of "confidential, proprietary and trade secret." DATED this 12ft day of March,z02l. JAN M. BENNETTS Ada County Prosecuting Attorney By: K. Jorgensen Deputy Prosecuting Attomey ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET _ PAGE 6 Jan Noriyuki Commission Secretary Idaho Public Utilities Commission I1331 W. Chinden Blvd., Bldg. 8, Ste. 20lA P.O. Box 83720 Boise,lD 83720 X Electronic Means w/ Consent secretary@puc.idaho. gov jan.noriyuki@puc. idaho. gov Matt Hunter Dayn Hardie Deputy Afforney's General Idaho Public Utilities Commission I1331 W. Chinden Blvd. Bldg. No. 8 PO Box 83720 Boise,lD 83720-0074 X Electronic Means il Consent matt.hunter@puc. idaho. gov dayn.hardie@puc.idaho. gov Michael C. Creamer Preston N. Carter SUEZ Water Idaho Inc. Givens Pursley LLP 601 W. Bannock St. Boise,Idaho 83702 X Electronic Means w/ Consent mcc@sivenspursley.com prestoncarter@ givenspursley.com David Njuguna Suez Water Management & Services 461 From Road, Suite 400 Paramus, NJ 07052 X Electronic Means il Consent david.ni u guna@suez.com Kendra Hoffinan GIVENS PURSLEY LLP 601 W. Bannock St. Boise,lD 83702 X Electronic Means w/ Consent kendrah@ givenspursle),.com Mary Grant Scott B. Muir Deputy City Attorney Boise City Attorney's office 105 N. Capitol Blvd. PO Box 500 Boise,ID 83701-0500 X Electronic Means w/ Consent Bo i seC it),Attornev@cit)rofboise.org CERTIFICATE OF SERYICE I hereby certiff that on the 12ft day of Marchz}zl,I served the foregoing document on all parties as follows: ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTAIN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET - PAGE 7 Norman M. Semanko Parsons Behle & Latimer 800 W. Main St., Suite 1300 Boise,lD 83702 X Electronic Means w/ Consent nsemanko @parsonsbehle.com bo isedocket@parsonsbehle.com Marly Durand Piotrowski Duran PLLC 1020 Main Street, Suite 440 PO Box 2864 Boise,ID 83701 X Electronic Means w/ Consent law.com Brad M. Purdy Attorney at Law 2019 N. 17tr Street Boise, lD 83702 X Electronic Means d Consent otmail.com Ken Nagy Attorney atLaw PO Box 164 Lewiston,ID 83501 Zoe Annolson Executive Director Intermountain Fair Housing Council, [nc. 4696W. Overland Road , #140 Boise,ID 83705 X Electronic Means w/ Consent knagy@lewiston.com zolson@ifhcidaho.ore Jim Swier Greg Harwood Micron Technology, Inc. 8000 South Federal Way Boise,ID 83707 X Electronic Means il Consent jswier@,micron.com gbharwood@micron.com Austin Rueschhoff Thorvald A. Nelson Holland & Hart, LLP 555 lTth Street, Suite 3200 Denver, CO 80202 X Electronic Means w/ Consent darue schho ff@ho I landhart. com tnelson@hollandhart.com aclee @hollandhart.com sl sarganoamari @hollandhart.com By /s/ Monica M. Devroude Monica M. Devroude, Legal Assistant ADA COUNTY'S MOTION TO COMPEL PUBLIC DISCLOSURE OF CERTATN DOCUMENTS MARKED AS CONFIDENTIAL, PROPRIETARY AND TRADE SECRET _ PAGE 8