20060628Mountain View Power.pdf

" ' ". " -'" " ". '": .
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
BE TWEEN
MOUNTAIN VIEW POWER AND IPUC STAFF
PROTECTIVE AGREEMENT
PROTECTIVE AGREEMENT
BETWEEN
MOUNT AIN VIEW POWER, INC. AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into this 26th day of June 2006 by Mountain
View Power, Inc. (Mountain View Power; Company) and the Idaho Public Utilities Commission
Staff ("Staff'
Recitals:
1. WHEREAS, Mountain View Power desires to make available to the Staff certain
information regarding Idaho Power s Application for a Certificate of Public Convenience and
Necessity for construction of the Evander Andrews Power Plant (Case No. IPC-06-9) and
Mountain View Power s bid and participation in the request for proposals (RFP) process.
2. WHEREAS, Staff desires to receive such information.
3. WHEREAS, Mountain View Power and Staff anticipate that Mountain View
Power may provide, or make available for review, certain information considered by Mountain
View Power to be of a trade secret, privileged or confidential nature (as defined in Idaho Code
340 et seq. and ~ 48-801 et seq.).
4. WHEREAS, Mountain View Power and Staff agree that entering into a
Protective Agreement will expedite the production of documents; will afford the necessary
protection to Mountain View 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 Mountain View 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
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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.
protected from unauthorized public disclosure.
Such information will be clearly marked and
(d) Nondisclosure Aereement.
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 Mountain View Power and acknowledged and approved by Mountain View Power
before disclosure is made.
2. (a) Copies
No copies or transcriptions of the Confidential Information shall be made by Staff
and/or Mountain View Power 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 Mountain View Power, all original documents and copies of the
Confidential Information shall be: 1) returned to Mountain View Power, or 2) shredded by the
holder of such documents.
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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 Mountain View 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
Mountain View Power, be either returned to Mountain View" 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. Challenee to Confidentiality.
(a)Initial Challenee
This Protective Agreement establishes a procedure for the expeditious handling of
information Mountain View Power claims is confidential. In any proceeding before the
Commission, Staff may challenge the characterization of any information, document, data or
study claimed by Mountain View 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 Mountain View 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 Challenee
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
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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) Challenee Hearine
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 Mountain View 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 ~ 9-335 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
Mountain View 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 Mountain View
Power and shall provide copies of the used Confidential Information or
substantive reference to Confidential Information only to the providing
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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, 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 Mountain View Power to the Commission, and
(4)
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'
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 Hearine 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 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.
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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 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) within thirty (30) days after final settlement or conclusion of this matter
including administrative or judicial review thereof.
7. Use in Pleadines
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
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, Mountain View 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
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
DA TED this 'l ~day of June 2006.
MOUNT AIN VIEW POWER, INc.
R~ zJ~
Ronald L. Williams
Williams Bradbury PC
PO Box 2128
Boise, ID 83701
Attorney Representing Mountain View Power, Inc.
C UTILITIES COMMISSION STAFF
Donovan E. Walker
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff
PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
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.
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PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this ~ "l*ay of June 2006 in Case No.
IPC-06-9 and agree to be bound by the terms and conditions of such Agreement.
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PROTECTIVE AGREEMENT BETWEEN
MOUNTAIN VIEW POWER AND
IDAHO PUBLIC UTILITIES COMMISSION STAFF
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this wev day of June 2006 in
Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement.
RlC siERL
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
Date
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EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this 2k(f....-- day of June 2006 in
Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement.
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IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
/ZS/tJh
Date
EXHIBIT"
I have reviewed the foregoing Protective Agreement dated this Zb1tv 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
lo~ O(l;)
Date
EXHIBIT
I have reviewed the foregoing Protective Agreement dated this zu0 day of June 2006 in
Case No. IPC-06-9 and agree to be bound by the terms and conditions of such Agreement.
Jw-U/
TERRI CARLOCK
IDAHO PUBLIC UTILITIES COMMISSION
Employer or Firm
472 W. WASHINGTON STREET, BOISE, IDAHO 83702
Business Address
COMMISSION STAFF
Party
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Date