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HomeMy WebLinkAbout20070105Protective agreement.pdfPROTECTIVE AGREEMENT BETWEEN IDAHO POWER COMPANY, BENNETT CREEK WIND FARM LLC AND IDt,HO HJJLiG IDAHO PUBLIC UTILITIES COMMISSION STAFF UTILITIES COp~(iiISSlc.:. RECE IV!:: 2001 JAN -5 Pii 4: This Protective Agreement is entered into this 3itlJ ay of January 2007 by Idaho Power Company ("Idaho Power" or "the Company ), Bennett Creek Windfann LLC ("Bennett") and the Idaho Public Utilities Commission Staff ("Staff' Recitals: 1. WHEREAS, Idaho Power and Bennett desire to make available to the Staff and other parties slgnl11g this document ("Party" or "Parties ) certain information respecting Idaho Power application for approval of a Firm Energy Sales Agreement for the sale and purchase of electric energy between Idaho Power Company and Bennett (Case No. IPC-06-35), including, but not limited to information fulllished by Bennett to support its claim to entitlement to published rates. 2. WHEREAS, Staff and other Parties desire to receive such information. 3. WHEREAS, Idaho Power, Bennett and Staff anticipate that Idaho Power may provide or make available for review, certain infonnation, considered by Bennett 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, Bennett, 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 , Bennett's and Staffs employees and/or representatives in this proceeding who might review the information and subsequently be l'equested to reveal its contents by setting forth specific 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 Power or Bennett by stamping the same with a designation indicating its trade secret, proprietary or confidential nature and printing the same 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 supp0l1 the claim. IDAPA 31.01.01.067 and PROTECTIVE AGREEMENT - I 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 Infonnation in accordance with 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-06-35 and then solely as contemplated herein, and shall keep the Confidential Infonnation secure as trade secret, confidential or proprietary information and in accordance with the purposes and intent ofthis Agreement. (c) Persons Entitled to Review Individual access to Confidential Information must be approved by Idaho Power (after consultation with Bennett) and shall be limited to counsel of the undersigned parties, employees, experts agents or representatives ofthe undersigned pm1ies who have executed an Exhibit "A" to this Agreement. (d) Nondisclosure Agreement. 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. Tl~e 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 after consultation with Bennett and before disclosure is made. (e) Challenge to Company Denial of Access Any disputes arising as a result of Idaho Power s denial of access to Confidential Infonnation shall be resolved by the Idaho Public Utilities Commission ("Commission 2. (a) Copies No copies or transcriptions of the Confidential lnfonnation shall be made by Staff or other Pal1ies except as necessary to make the information available to individuals who have executed an Exhibit "A" to this Protective Agreement. Such infonnation will be clearly marked as Confidential and protected from unauthorized public disclosure. (b) Return of Confidential Information Upon request of Idaho Power or Bennett, all original documents and copIes of the Confidential Information shall be: 1) returned to Idaho Power or, with Idaho Power s consent, returned directly to Bennett, or 2) shredded by the holder of such documents. PROTECTIVE AGREEMENT - 2 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 or, with Idaho Power s consent, directly to Bennett within thirty (30) days after final settlement or conclusion of the proceedings befOl e the Commission which Confidential Information was disclosed, 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 or Bennett, be returned to Idaho Power or, with Idaho Power s consent, directly to Bennett or, at the option of the recipient, destroyed. Nonwaiver of Objection to Admissibility The furnishing of any document, information, data, study or other materials pursuant to this Protective Agreement shall in no w,ay limit or waive the right of the providing party to object to its relevance or admissibility in any proceedings before this Commission. Challenge to Confidentiality (a)Initial Challenge This Protective Agreement establishes a procedure for the expeditious handling of information Idaho Power or Bennett claims is confidential. In any proceeding before the Commission Staff or a Pal1y may challenge the characterization of any information , document, data or study claimed by Idaho Power or Bennett to be a trade secret, proprietary or confidential information. If seeking to challenge the confidentiality of any information Staff or a Pal1y shall first contact counsel for Idaho Power or Bennett and attempt to resolve any difference by stipulation. Resolution rnay include removing the confidential classifications, creating a non-confidential summary, reformatting the information, etc. (b)SubseQuent Challenge. In the event that the parties cannot agree as to the character of the information challenged Staff or a Pal1y may challenge the confidentiality of the information by petitioning the Commission, in any proceeding in which the information is relevant, to rule upon the disputed information. The Petition shall be served upon the Commission and all pal1ies to. the proceeding who have signed an 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 the challenging Pal1y. PROTECTIVE AGREEMENT - 3 (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, Bennett and the Comm ission. 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 challenging party 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, the receiving pal1y 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 Bennett consents to such conduct. This procedure enables the providing pal1y 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. (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 a 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 Bennett and shall provide copies of the Confidential Information or substantive reference Confidential Information only to the providing pal1y, and such other pal1ies, 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)(J) shall be placed in the sealed record. Only one (I) copy of the documents designated to be placed in a sealed record (4) shall be made, which copy shall be supplied by the providing pal1y. The copy of the documents to be placed in the sealed record shall be tendered by counsel for Idaho Power or Bennett to the Commission, and shall be maintained in accordance with the terms of this Protective Agreement. PROTECTIVE AGREEMENT - 4 (b)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 fol1h in this Agreement, if applicable. (c)III 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 p0l1ion 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 pal1ies and hearing, pursuant to the order of the Comm ission and/or the final order of a couli having final jurisd iction. (e)Appeal. Should an appeal from the proceeding be taken, sealed p0l1ions 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 coUl1under seal for the purposes of an appeal, the providing p311y shall be notified which portion of the sealed record has been designated by the appealing party as necessary to the record on appeal. 6. 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 returned to counsel for the providing party within thil1y (30) days after final settlement or conclusion ofthis matter, including administrative or judicial review thereof. 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 PROTECTIVE AGREEMENT - 5 Infonnation shall be placed in a separate section ofthe pleading or brief and submitted to the Commission pursuant to Paragraph 5. This sealed section shall be served 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 or Bennett shall prepare a written summary of the Confidential Information referred to in Orders to be issued to the public and the parties. 9. Counterparts This Agreement may be executed in counterpm1s and each signed counterpart shall constitute an original document. 10. This Protective Agreement shall become effective on the date hereof. DATED this 2rytlday of January 2007. IDAHO POWER COMPANY~Gc- Barton L. Kline Attol11ey Idaho Power Company 1221 West Idaho Street Boise, Idaho 83702 IDAHO PUBLIC UTILITIES COMMISSION STAFF Scott Woodbury Deputy Attorney General Idaho Public Utilities Commission 472 West Washington Street Boise, ID 83702 1/03/0 Attol11ey Representing Idaho Public Utilities Commission Staff PROTECTIVE AGREEMENT - 6 PROTECTIVE AGREEMENT - 7 BENNETT CREEK WINDFARM LLC :\;~ lt~ Dean J. Miller Attorney for Bennett Creek McDevitt & Miller LLP 420 W. Bannock Boise, ID 83701 EXHIBIT A 1.r I have reviewed the foregoing Protective Agreement dated January L-, 2007 in Case No. IPC-06-35 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. 71~I K STERLING IDAHO PUBLIC UTILITIES COMMISSION Employer or Firm 472 W. WASHINGTON STREET, BOISE, IDAHO Business Address COMMISSION STAFF Party Date lip Idaho Power Company Approval By: Date: PROTECTIVE AGREEMENT - I