Idaho Power_Staff_2001PCA.doc

PROTECTIVE AGREEMENT
BETWEEN
IDAHO POWER COMPANY
AND
IDAHO PUBLIC UTILITIES COMMISSION

This Protective Agreement is entered into this __4th____ day of April, 2001 by Idaho Power Company (Idaho Power) and the Idaho Public Utilities Commission (Staff).
Recitals:
1. WHEREAS, the Staff and Teknecon Energy Risk Advisors, LLC (TERA) have entered into a contract pursuant to which TERA will assist Staff in conducting an audit of transactions between Idaho Power Company and its energy trading/risk management affiliate.
2. WHEREAS, Idaho Power desires to make available to the Staff certain information respecting Idaho Power’s pending applications for the emergency energy charge and PCA, and Staff desires to receive such information.
3. WHEREAS, Idaho Power and Staff anticipate that Idaho Power may provide, or make available for review, certain information, considered by Idaho Power to be a trade secret, privileged or confidential nature (as defined in Idaho Code § 9-340 et seq. and § 48-801 et seq.).
4. WHEREAS, Idaho Power and Staff agree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to Idaho Power’s and Staff’s employees and/or representatives who might review the information and subsequently be requested to reveal its contents by setting forth 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 materials furnished that are claimed to be of trade secret, proprietary or confidential nature (herein referred to as “Confidential Information”) shall be so marked by Idaho Power by stamping the same with a designation indication its trade secret, proprietary 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 strictly controlled by terms of this Agreement.
(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 purpose other than the purpose of preparation for and conduct of proceedings before the Commission and then solely as contemplated herein, and shall keep the Confidential Information secure as trade secret, confidential or proprietary information and in accordance with the purposes and intent of this Agreement.
(c) Persons Entitled to Review.
Access to Confidential Information shall be limited to counsel of the undersigned parties, employees, experts, agents or representatives of the undersigned parties who have executed an Exhibit “A” to this Agreement. Such information will be clearly marked and protected from unauthorized public disclosure.
The Commission Staff and TERA shall keep strictly confidential and take reasonable precautions to protect against the disclosure to unauthorized third parties of all Confidential Information, and use all of the Confidential Information solely for the purpose of conducting the Audit; provided, however, that the Commission Staff may disclose Confidential Information and facts, terms and conditions to TERA with a need to know such information for the purpose of assisting the audit if, and only if, prior to being given access to such Confidential Information or being told such matters, TERA is informed of the confidentiality thereof and the Commission Staff has taken or takes appropriate measures to ensure that such representative will treat such information confidentially.
(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 as Exhibit “A” and incorporated herein. The nondisclosure agreement or Exhibit “A” shall require the person to whom disclosure is to be made to read a copy of this Protective Agreement and to certify in writing that he or she has reviewed the same and has consented to be bound by its terms. The Agreement shall contain the signatory’s full name, permanent address and employer. Such Agreement shall be delivered to counsel for Idaho Power before disclosure is made.
2. (a) Copies.
No copies or transcriptions of the Confidential Information shall be made by Staff except as necessary to make the information available to individuals who have executed an Exhibit “A” to this Protective Agreement.
(b) Return of Confidential Information.
Upon request of Idaho Power, all original documents and copies of the Confidential Information shall be: 1) returned to Idaho Power, or 2) shredded by the holder of the documents.
Unless otherwise 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 this Agreement, and shall likewise, be returned to counsel for Idaho Power within thirty (30) days after final settlement or conclusion of any proceedings before the Commission, which Confidential Information is relevant including administrative or judicial review thereof. After return of documents pursuant to this paragraph, and upon request, a written receipt verifying return shall be provided by counsel.
(c) Return of Notes.
Any notes maintained by a recipient of Confidential Information which embody or reflect any of the Confidential Information provided under this Agreement shall, upon request of Idaho Power, be either returned to Idaho Power or, at the option of the recipient, destroyed.
3. Nonwaiver of Objection to Admissibility.
The furnishing of any document, information, data, study or other materials pursuant to this Protective Agreement shall in no way limit or waive the right of the providing party to object to its relevance or admissibility in any proceedings before the Commission.
4. Challenge to Confidentiality.
(a) Initial Challenge.
This Protective Agreement establishes a procedure for the expeditious handling of information Idaho Power claims is confidential. In any proceeding before the Commission, Staff may challenge the characterization of any information, document, data or study claimed by Idaho Power to be a trade secret, proprietary or confidential information. If seeking to challenge the confidentiality of any information Staff shall first contact counsel for Idaho Power and attempt to resolve any difference by stipulation. Resolution may include removing the confidential classifications, creating a nonconfidential summary, reformatting the information, etc.
(b) Subsequent Challenge.
In the event that the parties cannot 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 persons who have signed on Exhibit “A” as provided in this Protective Agreement. The Petition shall designate with specificity the document or material challenged and state the grounds upon which the subject material are deemed to be non-confidential by the Staff.
(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 materials under this Protective Agreement shall be present. This hearing shall be commenced no earlier than five (5) business days after serving the Petition on Idaho Power and the Commission. The record of the in camera hearing shall be marked “CONFIDENTIAL – Subject to Protective Agreement.” To the extent necessary, the transcript of such hearing shall be separately bound, segregated, sealed, and withheld from public inspection by any person not bound by the terms of this Agreement.
(d) Determination.
The parties will ask the Commission to issue an Order determining whether any challenged information or material is not properly deemed to be exempt from public disclosure pursuant to the Idaho Public Records Act. If information is found to be not exempt from disclosure, Staff shall not disclosure such challenged material or use it in the public record, or otherwise outside the proceedings for at least five (5) business days unless Idaho Power consents to such conduct. This procedure enables the restrictions of this Agreement to material claimed to be confidential. Such relief may be sought from the Commission or a court of competent jurisdiction.
5. (a) Receipt Into Evidence.
Provision is hereby made for receipt into evidence in this proceeding before the Commission of materials claimed to be confidential in the following manner:
(1) If Staff intends to use Confidential Information or to make substantive reference to Confidential Information supplied to it under this Agreement, it shall give reasonable prior notice of such intention to Idaho Power and shall provide copies of the used Confidential Information or substantive reference to Confidential Information only to the providing party, any such other persons, if any, who have executed an Exhibit A to this Protective Agreement.
(2) One (1) copy of the used Confidential Information or substantive reference to Confidential Information or substantive reference to Confidential Information described in paragraph 5(a)(1) shall be placed in the sealed record.
(3) Only one (1) copy of the documents designated to be placed in a sealed record shall be made, which copy shall be supplied by the providing party.
(4) The copy of the documents to be placed in the sealed record shall be tendered by counsel for Idaho Power and Commission, and shall be maintained in accordance with the terms of this Protective Agreement.
(b) Seal.
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 except 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 hearing in the proceedings shall be offered at an in camera hearing, 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. 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 Exhibit “A” as provided in this Protective Agreement, unless such information is released from the restrictions of this Agreement either through agreement of the parties or after notice to the parties and hearing, pursuant to the order of the Commission and/or the final order of a court 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 purposes of an appeal, but under seal as designated herein for the information and use of the court. If a portion of the record is forwarded to a court under seal for the purposes of an appeal, the providing party shall be notified which portion of the sealed record has been designated by the appealing party as necessary to the record on appeal.
7. Use in Pleadings.
Where references to Confidential Information in the sealed record or with the custodian is required in pleadings, briefs, arguments, or motions (except as provided in Paragraph 5), it shall be by citation to title or exhibit number or some other description that will 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 serviced only on counsel of record who have signed the nondisclosure agreements set forth in Exhibit “A” attached to this Protective Agreement, and may, in turn, be disclosed by them only to individuals who likewise signed Exhibit “A”.
8. Summary of Record.
If deemed necessary by the Commission, Idaho Power shall prepare a written summary of the Confidential Information referred to in Orders to be issued to the public and the parties.
9. Compelled Disclosure.
If Commission Staff or TERA become subject to a bona fide requirement (by subpoena, oral deposition, interrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to disclose any Confidential Information or any other matter required by paragraph 2 to be kept confidential, the Commission Staff (i) will promptly notify Idaho Power of the existence, terms and circumstances of such requirement so that Idaho Power may seek an appropriate protective order or waive compliance with the terms of this Agreement, and (ii) will cause TERA to cooperate fully with Idaho Power in seeking a protective order or other assurance that confidential treatment will be accorded to the Confidential Information or other matter. Idaho Power agrees to reimburse the Commission Staff and TERA for reasonable costs and attorneys fees incurred in providing such assistance.
If the Commission Staff or TERA, having complied with the foregoing, are compelled, in the opinion of legal counsel, to make disclosure in response to a requirement as described in above or else stand liable for contempt or suffer other censure or penalty, such person may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance hereunder.
10. This Protective Agreement shall become effective on the date hereof.
DATED at Boise, Idaho this day of April 2001.

IDAHO POWER COMPANY

By
Larry D. Ripley
Idaho Power Company
PO Box 70
Boise, ID 83707-0070

Attorneys for
Idaho Power Company

IDAHO PUBLIC UTILITIES COMMISSION STAFF

By
Lisa Nordstrom
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702

Attorney Representing
Idaho Public Utilities Commission Staff

EXHIBIT “A”

I have reviewed the foregoing Protective Agreement dated this 20th day of April 2001 in Case Nos. IPC-E-01-7 and IPC-E-01-11 and agree to be bound by the terms and conditions of such Agreement.

Name

Employer or Firm

Business Address

Party

Date

ADDENDUM TO EXHIBIT “A”

This Addendum incorporates the following terms into Exhibit “A” of the Protective Agreement.
11. Right to Audit Compliance.
TERA shall permit Idaho Power, or its designated agents, at any time to perform reasonable inspections or audits of TERA, upon reasonable notice and as frequently as Idaho Power may elect, in order to assure Idaho Power of TERA’s compliance with the terms of this Agreement. TERA agrees to grant Idaho Power or its agents reasonable access to TERA’s property and records to facilitate such inspections or audits. Such inspections or audit shall be limited to property and records directly associated with the Confidential Information as defined herein and related to TERA’s assistance to Staff’s audit of transactions between Idaho Power and its energy trading/risk management affiliate.
12. Remedies and Indemnification.
TERA hereby acknowledges and agrees that any breach of the terms of this Agreement by TERA will cause material and irreparable harm and damage to Idaho Power. For this reason, Idaho Power shall be entitled to injunctive relief to prevent a breach of this Agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which Idaho power may be entitled, at law or in equity. The failure or delay by Idaho Power in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any power, right or privilege hereunder.
13. Attorney’s Fees.
In any action to interpret or enforce the terms of this Agreement, whether in law or in equity, TERA or Idaho Power, if the prevailing party, shall be entitled to recover reasonable attorney’s fees (including any allocated in-house attorney costs), expert witness fees, and out-of-pocket costs incurred in connection with such action, including, but not limited to investigation or related matters and in preparation for and prosecution of any suit or action and all costs of any appeal or other form of review in addition to any other relief awarded.

I have reviewed the foregoing Addendum to Exhibit “A” dated this 5th day of April 2001 in Case Nos. IPC-E-01-7 and IPC-E-01-11 and agree to be bound by the terms and conditions of such Agreement.

Name

Employer or Firm

Business Address

Party

Date

PROTECTIVE AGREEMENT 8