20090112Protective Agreement - Staff.pdf

RECEiVED
BETWi~~~~~~~~Eci¿~i:~~ciN AND ion~ JAN' 2 ~M":' 9
IDAHO PUBLIC UTILITIES COMMISSION STAFF
+-Ths Protective Agreement is entered into ths cg Gay of Januar 2009 by Avista
Corporation (Avista) and the Idaho Public Utilities Commission Staff (Staff.
Recitals:
1. WHEREAS, A vista desires to make available to the Staff certin information,
and Staff desires to examine certain information, respecting Avista's Application to Approve a
Change in Electrc and Natural Gas Rates and Prices (Case Nos. A VU-E-09-0l/A VU-G-09-01).
2. WHEREAS, A vista and Staff anticipate that A vista may provide, or make
available for review, certin information considered by Avista to be of a trade secret, privileged
ior confidential natue (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
i 4. WHEREAS, Avista and Staff agree that entering into a Protective Agreementi c
i
Will expedite the production of documents; wil afford the necessar protection to Avista's and
Staffs employees and/or representatives in this proceeding who might review the information
and subsequently be requested to revea its contents by setting fort clear cut parameters for use
of Confidential Information, and will protect Confidential Information which might be provided
hereafter,
IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:
1. (a) Confidential Information.
All documents, data, information, studies and other materals fushed that are
claimed to be of trade secret, proprietar or confidential natue (herein refered to as
"Confidential Information") shall be so marked by Avista by stamping the same with a
designation indicating its trade secret, proprietar or confidential nature and printed on "colored"
paper. Any claim of confidentiality must be accompanied by an attorney's certificate that the
material is protected by law from public disclosure and cite the specific legal authority to support
the claim. IDAPA 31.01.01.067 and 31.01.01.233. Access to and review of Confidential
Information shall be strctly controlled by the terms of ths Agreement.
PROTECTIVE AGREEMENT BETWEEN
A VISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF i
(b) Use of Confidential Information
All persons who may be entitled to review, or who are afforded access to any
Confidential Information by reason of this Agreement shall neither use nor disclose the
Confidential Information for purposes of business or competition, or any purose other than the
purose of preparation for and conduct of Case Nos. A VU-E-09-0l/A VU-G-09-01 and then
solely as contemplated herein, and shall keep the Confidential Information secure as trade secret,
confidential or proprietar information and in accordance with the puroses and intent of ths
Agreement.
(c) Persons Entitled to Review.
Access to Confidential Information shall be limited to counel of the underigned
paries, employees, experts, agents or representatives of the undersigned pares who have
executed an Exhibit "A" to this Agreeent. Such information wil be clearly marked and
protected from unauthorized public disclosure.
(d) Nondisclosure Agreement.
Confidential Information shall not be disclosed to any person who has not signed a
nondisclosure agreement on this form, which is attached hereto as Exhbit "A" and incorporated
herein. The nondisclosure agreement or Exhibit "A" shall require the peron to whom disclosure
is to be made to read a copy of this Protective Agreement and to cerify in wrting that he or she
has reviewed the same and has consented to be bound by its ters. The Agreement shall contain
the signatory's full name, permanent address, and employer. Such agreement shall be delivered
to counsel forAvista and acknowledged and approved by Avista before disclosure is made.
2. (a) Copies.
No copies or transcrptions of the Confidential Information shall be made by Staff
and/or Avista except as necessar to make the information available to individuals who have
executed an Exhibit "A" to ths Protective Agreement.
(b) Return of Confidential Information.
Upon request of A vista, all original documents and copies of the Confidential
Information shall be: (1) retued to Avista, or (2) shredded by the holder of such documents.
Unless otherise ordered, Confidential Information, including transcripts or
depositions containing information to which a claim of confidentiality is made, shall remain
under seal, shall continue to be subject to the protective requirements of ths Agreement, and
PROTECTIVE AGREEMENT BETWEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 2
shall likewise, be reted to counel for A vista within thirty (30) days after final settlement or
conclusion of the proceedings before the Commission which Confidential Information is relevant
including administrative or judicial review thereof. After return of documents pursuant to ths
Paragraph, and upon request, a written receipt verifyng retu shall be provided by counsel.
(c) Return of Notes.
Any notes maintaned by a recipient of Confidential Information, which embody or
reflect any of the Confidential Information provided under this Agreement shall, upon request of
Avista, be either retued to Avista or, at the option of the recipient, destroyed.
3. Non-waiver of Objection to Admissibilty.
The fuishing of any document, information, data, study or other materials puruant
to this Protective Agreement shall in no way limit or waive the right of the providing pary to
object to its relevance or admissibilty in any proceedings before ths Commission.
4. Challenge to Confidentiality.
( a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of
information A vista claims is confidentiaL. In any proceeding before the Commission, Staff may
challenge the characterzation of any information, document, data, or study claimed by A vista to
be a trade secret, proprietar or confidential information. If seeking to challenge the
confidentiality of any information Staff shall first contact counsel for A vista and attempt to
resolve any difference by stipulation. Resolution may include removing the confidential
classifications, creating a non-confidential sumar, reformatting the information, etc.
(b) Subsequent Challenge.
In the event that the paries canot agree as to the character of the information
challenged, Staff may challenge the confidentiality of the information by petitioning in any
proceeding in which the information is relevant the Commission to rule upon the disputed
information. The Petition shall be served upon the Commission and all paries to the proceeding
who have signed on Exhibit "A" as provided in ths Protective Agreement. The Petition shall
designate with specificity the document or material challenged and state the grunds upon which
the subject material are deemed to be non-confidential by Staff.
PROTECTIVE AGREEMENT BETWEEN
AVISTACORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 3
(c) Challenge Hearing.
Staff shall request that the Commission conduct an in camera proceeding where only
those persons duly authorized to have access to such challenged materals under ths Protective
Agreeent shall be present. This hearng shall be commenced no earlier than five (5) business
days after servng the Petition on A vista and the Commission. The recrd of the in camera
hearng shall be marked "CONFIDENTIA - Subject to Protective Agreement." To the
extent necessar, the transcript of such hearng shall be separately bound, segregated, sealed, and
witheld from public inspection by any person not bound by the ters of this Agreement.
(d) Determination.
The paries wil ask the Commission to issue an Order deterining whether any
challenged information or materal is not properly deemed to be exempt from public disclosure
pursuant to the Idaho Public Records Act. (Idaho Code § 9-335 et seq.) If information is found
to be not exempt from disclosure, Staff shall not disclose such challenged materal or use it in the
public record or otherise outside the proceedings for at least five (5) business days unless
A vista consents to such conduct. Ths procedure enables the providing pary to seek a stay or
other relief. from the Commission's Order removing the restrctions of ths Agreement. from
materal claimed to be confidential. Such relief may be sought from the Commission or a cour
of competent jursdiction.
S. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding of materals
claimed to be confidential in the following maner:
(l) If Staff intends to use Confidential Information or to make substative
reference to Confidential Information supplied to it under this
Agreement, it shall give reasonable prior notice of such intention to
A vista and shall provide copies of the used Confidential Information or
substative reference to Confidential Information only to the providing
pary, and such other paries, if any, who have executed an Exhibit "A"
to this Protective Agreement.
(2) One (1) copy of the used Confidential Information or substative
reference to Confidential Information or substantive reference to
Confidential Information descrbed in Paragraph 5(a)(I) shall be place
in the sealed record.
PROTECTIVE AGREEMENT BETWEEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 4
(3) Only one (1) copy of the documents designated to be place in a sealed
record shall be made, which copy shall be supplied by the providing
pary.
(4) The copy of the documents to be placed in the seaed record shall be
tendered by counsel for A vista to the Commission, and shall be
maintaned in accordance with the ters of this Protective Agreement.
(b) ~.
While in the custody of the Commission, materials containing Confidential
Information shall be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY'S
CERTIFICATE OF CONFIDENTIALITY" and shall not be examined by any person excet
under the conditions set forth in this Agreement, if applicable.
(c) In Camera Hearing and Transcripts.
Any Confidential Information that must be orally disclosed at a hearng in the
proceedings shall be offered at an in camera hearng, attended only by persons authorized to
have access to the information under this Protective Agreement. Similarly, any transcription of
any examination or other reference to Confidential Information (or that portion of the record
containing Confidential Information) shall be marked and treated as provided herein for
Confidential Information. See IDAPA 31.01.01.287.
(d) Access to Record.
Access to sealed testimony, records, and information shall be limited to the
Commission and persons who have signed an Exhbit "A" as provided in ths Protective
Agreement, unless such information is released from the restrctions of this Agreement either
though agreement of the paries or after notice to the paries and hearng, pursuant to the order
of the Commission and/or the final order of a cour having final jurisdiction.
(e) AppeaL.
Should an appeal from the proceeding be taken, sealed portions of the record may be
forwarded to any court of competent jurisdiction for puroses of an appeal, but under seal as
designated.herein for the information and use of the cour. If a portion of the record is forwarded
to a cour under seal for the puroses of an appeal, the providing pary shall be notified which
portion of the sealed record has been designated by the appealing pary as necessar to the recrd
on appeal.
PROTECTIVE AGREEMENT BETWEN
AVISTACORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 5
6. Destruction.
Unless otherise ordered, Confdential Information provided pursuant to a discver
request and this Agreement, including transcripts of any discover depositions to which a claim
of confidentiality is made, shall remain under seal, shall continue to be subject to the protective
requirements of ths Agreement, and shall be destroyed within thirty (30) days after final
settlement or conclusion of this matter, including administrative or judicial review thereof.
7. Use in Pleadings.
Where references to Confidential Information in the sealed record or with the
custodian is required in pleadings, briefs, arguents, or motions (except as provided in
Paragraph 5), it shall be by citation to title or exhibit number or some other description that wil
not disclose the substantive Confidential Information contained therein. Any use of or
substantive references to Confidential Information shall be placed in a separate section of the
pleading or brief and submitted to the Commission pursuant to Paragraph 5. This sealed section
shall be serced only on counsel of record who have signed the non-disclosure agreements set
fort in Exhibit "A" attached to ths Protective Agreement, and may, in tu, be disclosed by
them only to individuals who likewise signed Exhibit "A".
8. Summary of Record.
If deemed necessar by the Commission, Avista shall prepare a wrtten sumar of
the Confidential Information refered to in Orders to be issued to the public and the paries.
9. This Protective Agreement shall become effective on the date hereof.
PROTECTIVE AGREEMENT BETWEEN
A VIST A CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 6
DATED ths ~
-r day of Janua 2009.
AVISTACORPORATION
BY¿Z/-
David ~: i
A vista Corporation
P.O. Box 3727
141 1 E. Mission Ave.
Spokane, W A 99220-3727
Vice President and Chief Counsel for Regulatory and
Goverent Affairs - A vista Corporation
IDAHO PUBLIC UTILITIES COMMISSION STAFF
Scott D. Woodbur
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702-5918
Attorney Representing
Idaho Public Utilties Commission Staff
PROTECTIVE AGREEMENT BETWEN
AVISTA CORPORATION AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF 7