HomeMy WebLinkAbout20070626Protective Agreement.pdfPROTECTIVE AGREEMENT
BETWEEN IDAHO POWER COMPANY AND THE
IDAHO PUBLIC UTILITIES COMMISSION STAFF
This Protective Agreement is entered into this2/P---day of June 2007 by Idaho Power
Company ("Idaho Power ), and the Idaho Public Utilities Commission Staff ("Staff'
Recitals:
1. WHEREAS, Idaho Power desires to make available to the Staff certain
information respecting Cassia/Idaho Power s Settlement Stipulation and Idaho Power s desire to
utilize the terms and conditions contained in the Stipulation and Settlement Agreement as a
template for the negotiation of additional interconnection agreements (Case No. IPC-06-21);
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 by either Idaho Power or Third Parties to be of trade secret, proprietary or confidential
nature (herein referred to as "Confidenti~l 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 suppprt 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.
PROTECTIVE 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-06-2l 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 Ae:reement.
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.
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.
PROTECTIVE AGREEMENT
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. ChalIene:e to Confidentiality
(a)Initial ChaIlene: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
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
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 ChalIene:e
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
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
PROTECTIVE AGREEMENT
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)Challene:e Hearine:
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 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.
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
PROTECTIVE AGREEMENT
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.
(4)
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.
(3)
(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 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
PROTECTIVE AGREEMENT
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 Pleadine: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 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
DATED this
PROTECTIVE AGREEMENT
day of June 2007.
IDAHO POWER COMPANY
Barton L. Kline
Idaho Power Company
PO Box 70
Boise, ID 83707-0070
Attorney Representing Idaho Power Company
IDAHO PUBLIC UTILITIES COMMISSION STAFF
By
Scott D. Woodbury
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83702
Attorney Representing
Idaho Public Utilities Commission Staff