HARRINGTv1.docx

September 10, 1996
Patrick A.  Harrington
Idaho Power Company
PO Box 70
Boise, ID 83707
Dear Mr. Harrington:
This letter is in response to your letter to Stephanie Miller, the Administrator of the Utilities Division of the Idaho Public Utilities Commission concerning the Idaho Department of Water Resources’ request for information from Idaho Power.  Ms. Miller has asked me to respond to your inquiry of whether the Commission Staff believes an Order would be required from the Commission to disclose the information requested by IDWR.
According to Idaho Code § 62-1302, upon receipt of a request from IDWR, all suppliers of electric power shall submit an annual report after the close of the irrigation season. The report shall contain electric or gas consumptive data for all accounts categorized as irrigation customers in geographic areas designated  by the Commission.  I have enclosed a copy of the Commission Rules Relating to Electric and Natural or Manufactured for Consumption from Ground Water Pumping, IDAPA 31.81.01.000 et seq. which also addresses consumption data reports.  Rules 11 through 20 outline the reporting rules and the contents to be included in consumption reports.  It appears that the consumption reports are defined by specific geographic area rather than by individual customers accounts.  Rule 12.02.  Although Rule 12.01 states that included in the content of the consumptive reports may be the customer name and account number, service location and number, and the amount of energy consumers for each service location, Rule 4 provides that the release of individual customer names and accounts is protected from public disclosure.  The Rules do not require a Commission Order before releasing the report to IDWR.
This request for release of power records of individuals may raise the issue of right to privacy in utility records.  In State v. Kluss, 125 Idaho 14, 867 P.2d 247 (1993) the Court of Appeals reviewed whether the disclosure of utility records, specifically power usage records, was protected by Article 1, Section 17 of the Idaho Constitution.  Section 17 of the Idaho Constitution provides “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures should not be violated.  No warrant shall be issued without probable cause shown by affidavit. . . .”  In other words, do law enforcement agencies have to get a search warrant to obtain access to power records?  The Court found that the disclosure of an individual’s power consumption records maintained by a utility is not subject to the protection of Article 1, Section 17.  State v. Kluss, 125 Idaho at 21.  Thus, a search warrant is not mandated by the Constitution.  The Court also noted that the decision whether to release consumption records was left to the discretion of the utility “as a matter of policy.”  Id.  
Based on the above references, it is Staff’s opinion that it is not necessary to obtain a Commission Order prior to the release of the information requested by IDWR.   Please note, however, the Commission has not ruled on this matter and it is not before them at this time.  
I hope this helps you in your decision.  If you need further information, you may call me at 334-0314.
Sincerely,
Susan E.  Hamlin
Deputy Attorney General
SEH/vld/L:Harringt.sh
Enclosure
cc:Stephanie Miller