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HomeMy WebLinkAbout20060628IPC Protective Agreement.pdf. ., --. " . I , .. , , 'b ii, 1-- . ~. ' b I : ii" 'b BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF IDAHO POWER COMPANY'S APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR THE EV ANDER ANDREWS POWER PLANT ) CASE NO. IPC-O6- PROTECTIVE AGREEMENT PROTECTIVE AGREEMENT PROTECTIVE AGREEMENT PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY IDAHO PUBLIC UTILITIES COMMISSION STAFF AND OTHER PARTIES This Protective Agreement is entered into this \ 6~ay of June 2006 by Idaho Power Company ("Idaho Power ), the Idaho Public Utilities Commission Staff ("Staff'), and other parties. Recitals: 1. WHEREAS, Idaho Power desires to make available to the Staff and other parties' certain information respecting Idaho Power s Application for a Certificate of Convenience and Necessity for construction of the Evander Andrews Power Plant (Case No. IPC-06-9); 2. WHEREAS, Staff and other parties desire to receive such information; 3. WHEREAS Idaho Power, Staff, and other parties 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 ~ 9-340 et seq. and ~ 48-801 et seq.); 4. WHEREAS, in response to Idaho Power s Request for Proposals for a peaking resource, Idaho Power received Proposals from third parties that contain information requested by said third parties to be of a trade secret, privileged or confidential nature ("Third Party Information. " 5. WHEREAS Idaho Power maintains it is subject to a legal duty to maintain the confidentiality of Third Party Information and to use said information only for certain limited purposes; 6. WHEREAS, Idaho Power, Staff, and other parties agree that entering into a Protective Agreement will expedite the production of documents; will afford the necessary protection to Idaho Power , Staffs, and other parties' employees and/or representatives in thi 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 PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES All documents, data, infomlation, studies and other materials furnished that are claimed by either Idaho Power or Third Parties 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 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. 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 of Case No. IPC-06-9 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, which Exhibit A is incorporated herein by reference as if set out in full. Such Confidential Information will 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 an Exhibit A.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. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES 2. (a) Copies No copies or transcriptions of the Confidential Information shall be made by Staff Idaho Power, and/or other parties 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 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 this 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 or other parties 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 the challenging party shall first contact PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES 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, contacting the third party regarding a waiver, etc. (b)Subsequent Challenge In the event that the parties cannot agree as to the character of the information challenged, Staff or other parties 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 or other party. (c)Challenge Hearing The challenging party 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 either the Idaho Public Records Act. (Idaho Code ~ 9-335 et seq.)or Idaho Power legal duty to maintain the confidentiality or proprietary nature of any Third Party Information. information is found to be not exempt from disclosure, Staff or other parties 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 or the third party consents to such conduct. This procedure enables the providing party to seek a stay or other relief from the Commission 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. PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES 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 or another party 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. The purpose of the prior notice is to allow parties to explore whether the confidential information may be disclosed pursuant to paragraph 4(a) above, thereby avoiding or minimizing a sealed record or closed hearing. One (1) copy of the used Confidential Information or substantive reference(2) 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. 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 accordance with the terms of this Protective Agreement. (4)' (b)Seal. While in the custody of the Commission, materials containing Confidential Information shall be marked "CONFIDENTIAL - SUBJECT TO ATTORNEY' 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 have access to the information under this Protective Agreement. Similarly, any transcription of PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES 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 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 or Return 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, at the providing party s sole discretion either destroyed or returned 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 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 non-disclosure agreements set PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES 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, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES DATED this IS-fA day of June 2006. IDAHO POWER COMPANY Monica Moen Idaho Power Company PO Box 70 Boise, ID 83707-0070 Attorney Representing Idaho Power Company IC UTILITIES COMMISSION STAFF Do 'QY~ . Walker Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, ID 83702 Attorney Representing Idaho Public Utilities Commission Staff ~WER Peter 1. Ric ards Richardson & O'Leary PLLC 515 N. 2ih Street PO Box 7218 Boise, ID 83702 Attorneys Representing Industrial Customers of Idaho Power PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, IDAHO PUBLIC UTILITIES COMMISSION STAFF, AND OTHER PARTIES EXHIBIT" I have reviewed the foregoing Protective Agreement dated this I day of June 2006 in Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement. IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE, IDAHO 83702 Business Address COMMISSION STAFF Party tJ( (J Date EXHIBIT" I have reviewed the foregoing Protective Agreement dated this /~~ day of June 2006 in Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement. ~0R TERRI CARLOCK IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE, IDAHO 83702 Business Address COMMISSION STAFF Party (a I HSl_0 ~ Date ~~ I have reviewed the foregoing Protective Agreement dated this (day of June 2006 III Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement. EXHIBIT" :S&;;L~ STERLING IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE, IDAHO 83702 Business Address COMMISSION STAFF Party Date l.,/jjht EXHIBIT "A" I have reviewed the foregoing Protective Agreement dated this lldclY of June 2006 in Case No. IPC-06-9 and agree to be bound by the tenns and conditions of such Agreement. -1A- Name fV\IorK R. o~f~1I\ R \LJ.A(Jd"&J.6lA ~ ~(. ~ve ~~ 3/ 2bD6 Employer or Firm 5lS- N" 2.., fvt Sf-v-~eA' o. lSox 7 2.1 ~ J ~o'~ ill '0'"37'.)'2- Business Address 1V\~~ia.t Party Cu.7~ e-vs Dr- ~o ?o-wev- &/'3jc/b Date PROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY AND IDAHO PUBLIC UTILITIES COMMISSION STAFF