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HomeMy WebLinkAbout20040318Protective Agreement.pdfPROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF This Protective Agreement is entered into this 18TH day of March 2004 by Idaho Power Company and the Idaho Public Utilities Commission Staff ("Staff' Recitals: 1. WHEREAS, in response to the First Production Request of the Commission Staff in Case No. IPC-04-, the "Application of Idaho Power Company for Approval of an Agreement for Sale and Purchase of Electric Energy between Idaho Power Company and Renewable Energy of Idaho, Inc. Idaho Power desires to make available to the Staff certain price data. 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 48-801 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 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 Infonnation ) shall be so marked by Idaho Power by 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 ~ertificate 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 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 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF- of Case No. IPC-04-5 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 Individual access to Confidential Information must be approved by Idaho Power and shall be counsel of the undersigned parties, employees, experts, agents or representatives of thelimited to 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 Al!reement 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) Challenl!e 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 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 such documen~s. 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 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. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 2 (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 ofthe recipient, destroyed. 3. Nonwaiver of Objection to Admissibilitv 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. Challenl!e to Confidentiality (a)Initial Challenl!e 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 non-confidential summary, reformatting the information, etc. (b)SubseQuent Challenl!e 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 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 non- confidential by Staff. (c)Challenl!e Hearinl! 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. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 3 (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 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 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 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 (3) described in paragraph 5(a)(1) shall be placed in the sealed record. 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. The copy of the documents to be placed in the sealed record shall be tendered by counsel for Idaho Power to the Commission, and shall be maintained in (4) (b) accordance with the terms of this Protective Agreement. 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)III Camera Hearinl! 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 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 4 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. (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. 6. Destruction ror Returnl Unless otherwise ordered, Confidential Information provided pursuant to a discovery request and this Agreement, including transcripts of any discovery depositions 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 be destroyed (shall be returned to counsel for the providing party J within thirty (30) days after final settlement or conclusion of this matter, including administrative or judicial review thereof. Use in Pleadinl!s 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 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 " 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. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 5 9. This Protective Agreement shall become effective on the date hereof. DATED this /g#.. day of March 2004. IDAHO POWER COMPANY Name: MolV /C/1 MoeN 1221 West Idaho Street Boise, Idaho 83702 IDAHO PUBLIC UTILITIES COMMISSION STAFF~~6:7~By Scott D, Woodbury 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 STAl"l" - (j EXHIBIT A I have reviewed the foregoing Protective Agreement dated March -J12-, 2004 in Case No. IPC-04- 5 and agree to be bound by the terms and conditions of such Agreement, provided that the provisions of Sections 4 (Challenge to Confidentiality) and 5 (a) (Receipt into Evidence), applicable to IPUC Staff, shall also be applicable to me, as the representative ofthe below-referenced Party. Name: I- :S~~ IliAd/) PliBL/( f/l"""/L. /l?C'5 Employer or Firm CO/V1M/jS/t/N 17 \IV. vi A:Sf//NbltJ/i. /30/ SF / 8372. Business Address flUe Party 'J7f FF- 3/17/ /)1 Date Idaho Power Company Approval By: Date: PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 7 EXHIDIT A I have reviewed the foregoing Protective Agreement dated March 2004 in Case No. IPC-O4- 5 and agree to be bound by the terms and conditions of such Agreement, provided that the provisions of Sections 4 (Challenge to Confidentiality) and 5(a) (Receipt into Evidence), applicable to IPUC Staff, shall also be applicable to me, as the representative of the below-referenced Party. Name: . ;RvJ S1;/7 IJAIIIJ Plll3L/( t./;r-/L lJe5 Employer or Finn OIVIMI.5SJ(l# 472. W. v/A5f1IN61tJ/I. 13t115F tfJ 8372. Business Address /fuc Party 171F,e. 311'"7 tJ1 Date Idaho Power Company Approval By: - ~--- Date: o~ I t'i! I Olf- PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF - 7