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HomeMy WebLinkAbout20031014Protective Agreements.pdfj:S is, PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF fI) 20BlOCT -9 PH4:41 HECEIVED !:"' ,- This Protective Agreement is entered into this IDtdW PUBLIC UTILITIES COMH1SStON +h.. day of October 2003 by Idaho Power Company and the Idaho Public Utilities Commission Staff ("Staff). Recitals: 1. WHEREAS, Idaho Power desires to make available to the Staff certain information respecting Idaho Power s Application for a Certificate of Public Convenience and Necessity for inclusion of the Bennett Mountain Power Plant in Idaho Power s rate base. (Case No. IPC-03-12). 2. WHEREAS, 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 of a trade secret, privileged or confidential nature(as defined in Idaho Code 9 9-340 et seq. and 9 48-801et seq.). 4. WHEREAS, Idaho Power and Staffagree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to Idaho Power s and Staffs employees and/or representatives in this proceeding 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 Powerby stamping the same with a designation indicating 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. IDAP A 31.01.01.067 and 31.01.01.233. Access to and review of Confidential Information shall be strictly controlled by the 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 Case No. IPC-02-12 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 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - ) purposes and intent of this Agreement. (c) Persons Entitled to Review Individual access to Confidential Information must be approved by Idaho Power and 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. (d) Nondisclosure A2reement Confidential Information shall not be disclosed to any person who has not. signed a nondisclosure agreement on this form, which is attached hereto 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 and acknowledged and approved by Idaho Power before disclosure is made. (e) Challen2e to Company Denial of Access Any disputes arising as a result of Idaho Power s denial of access to Confidential Information shall be resolved by the Idaho Public Utilities Commission ("Commission 2. (a) Copies No copies or transcriptions of the Confidential Information shall be made by St~ff 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 such 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 the proceedings before the Commission which Confidential Information is relevant including administrative pr 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 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 2 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 this Commission. 4. Challen2e to Confidentiality (a) Initial Challen2e 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 infol111ation. 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 non-confidential summary, reformatting the information, etc. (b)SubseQuent Challen2e. 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 petition,ng 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 parties to the proceeding 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 nonconfidential by Staff. (c) Challen2e Hearin2 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. (Idaho Code 9 9-335 et seq.) if information is found to be not exempt from PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 3 disclosure, Staff shall not disclose 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 providing party to seek a stay or other relief from the Commission s Order removing the restrictions of this Agreement from material claimed to be confidential. Such reliefmaybe 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 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, and such other parties, 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. (4) The copy of the documents to be placed in the sealed record shall be tendered to the 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 Iriformation 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)III Camera Hearin2 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. See IDAP A 31.01.01.287. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 4 (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/orthe 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 appea1. 6. Destruction or Return. Unless otherwise ordered, Confidential Information provided pursuant to a discovc;ry request and this Agreement, including transcripts of any discovery depositions tov.;hich a claim of confidentiality is made, shall remain under seal, shall continue to be. subject to the protective requirements of this Agreement, and shall be destroyed or shall bereturneel to counsel for the providing party within thirty (30) days after final settlement or conclusion ,of this matter, including administrative or judicial review thereof. 7. Use in Pleadin2s 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 descriptiOIi 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 non-disclosure 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. This Protective Agreement shall become effective on the date hereof. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 5 DATED this 7-/k day of October 2003. IDAHO POWER COMPANY ~y: d-dXL- Barton L. Kline 1221 West Idaho Street Boise, Idaho 83702 IDAHO PUBLIC UTILITIES COMMISSION STAFF By: Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, ill 83702 . Attorney Representing Idaho Public Utilities Commission Staff PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 6 EXHIBIT A I have reviewed the foregoing Protective Agreementdated October , 2003 in Case No. IPC-03-12 and agree to be bound by the terms and conditions of such Agreement. Printed Name: ~-t4o rY\ Employer or Firm (;e~e-('(). YO- Co)( ~3720 Business Addr.ess ' 'S6q\~ . \D ~7Z() -fJO7'1 COM Y'f\ \ ~~ )dY-. Party ~+Ot Date 'Z.O'6 Idaho Power Company Approval By: Date: aM to Oq - 03 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 7 EXHIBIT A I have reviewed the foregoing Protective Agreement dated October 2, 2003 in Case No. IPC-03-12 and agree to be bound by the terms and conditions of such Agreement. Woe) Printed Name:T~rrl lar)ocJ; ('J .I d a..n 0 PlA-b 1 i' Vi i-i ); tr -'h'7I'Yli ss lOr) Employer or Firm Po l3o~ 83/10 Botsp Il) 'g?J7:J.()- 0074 Business A dress LoJ'Y1Jr;; ~~ /0/1 Party s -n;.J' ~ Oe.t-obif ~OO3 Date Idaho Power Company Approval By: Date: . PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 7