20060927order_no_30136.pdf

Office of the Secretary
Service Date
September 27, 2006
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
ORDER NO. 30136
CASE NO. IPC-06-
On September 22, 2006, the Commission received a Motion from the Industrial
Customers of Idaho Power (ICIP) seeking to compel Idaho Power Company to fully and
completely respond to five confidential production requests. The parties had previously entered
into a Protective Agreement that was intended to control the availability and dissemination of
information claimed to be confidential or trade secrets.Idaho Code ~ 48-801; IDAPA
31.01.01.067.04; IRCP 26(c). ICIP sought expedited relief on shortened notice pursuant to Rule
256. IDAP 31.01.01.256. On September 22, 2006, the Commission also received a
letter/motion from Heinz Frozen Food Company entitled Motion to Protect Trade Secret and
Confidential Information of a Non-Party. Based upon our hearing, the Commission grants
ICIP's request in part and denies the request in part.
THE HEARING
By agreement of the parties (Idaho Power, ICIP, and Commission Staff), the
Commission convened a hearing on September 26, 2006, on shortened notice to address ICIP'
Motion. ICIP, Idaho Power, and Staff were all represented at the hearing. A representative from
Heinz was given the opportunity to participate in the hearing telephonically, but declined. The
Commission directed that the hearing be closed and that the transcript be sealed pursuant to Rule
287. IDAPA 31.01.01.287.
DISCUSSION AND FINDINGS
ICIP initially asked the Commission to compel Idaho Power to fully and completely
respond to Production Request Nos. 49, 50, 51 , 52, and 53. At hearing ICIP withdrew its request
with regard to No. 53.
ICIP argued that Idaho Power s objections to the production requests were untimely.
Pursuant to Rule 225 , parties have 14 days to object or explain why a production request cannot
be answered, and 28 days in which to answer. IDAPA 31.01.01.225.03. Idaho Power did not
object to any of the requests within 14 days. Instead, the Company submitted "partial" answers
ORDER NO. 30136
within the 28 days stating that certain information was regarded as confidential and would not be
supplied.
Upon examination of the actual questions and answers, we find that Idaho Power
supplied sufficient responses to Request Nos. 49 and 51. We find Idaho Power s responses
reasonably address the requests and generally provide more information than simply objecting to
the requests. We also note the Protective Agreement recites that all production requests are
considered as continuing, and parties have an obligation to answer and supplement responses
with any additional information or documents that may be obtained or discovered after
submission of an answer. IRCP 26(e)(3). We remind the parties of this responsibility and our
expectation that they will comply with it.
With regard to the remaining two requests, we find, and Idaho Power admits, that it
did not answer Request Nos. 50 and 52. Given the protections incorporated in the Protective
Agreement and the issues in this case, we find it reasonable, necessary, and in the public interest
that Idaho Power be compelled to respond to Request Nos. 50 and 52. Although the Commission
understands the concerns of Idaho Power and Heinz in protecting confidential information, we
find that the procedures and protections set forth by the parties' Protective Agreement
Commission Rules, and the Idaho Rules of Professional Conduct provide sufficient protections
and assurances that this information will be safeguarded. In particular, the Agreement
safeguards the disclosure of confidential information or trade secrets, limits the number of
individuals with access, and allows Idaho Power to "approve" the individuals for access before
the information is disclosed. IDAPA 31.01.01.067, 31.01.01.233; Idaho Code 99 48-802 48-
803. Disclosure is restricted to ICIP's two counsel and its single expert witness. We further find
there is a very strong public interest in the complete and thorough examination of the decision to
go forward with the construction of a new power plant. The public interest compels the answer
to Request Nos. 50 and 52 under the procedures and protections afforded by the Protective
Agreement.
The requested information has been identified as confidential information by the
parties, and has been handled under the special procedures for confidential information set out in
the parties' Protective Agreement. Similarly, the Commission has held a closed hearing and
ordered a sealed transcript pursuant to Rule 287. Under the parties' Protective Agreement , only
those persons who have signed and executed an "Exhibit A" are granted access to information
ORDER NO. 30136
deemed confidential. Additionally, Idaho Power must acknowledge and approve each "Exhibit
A" prior to making the disclosure. The Protective Agreement prohibits the re-disclosure and the
use of confidential information for any purpose other than that required by the Commission
consideration of Case No. IPC- E-06-09.
In summary, we find that there are sufficient safeguards in place to protect any
claimed confidential information in this situation, and order Idaho Power to respond. As an
added precaution, we order Idaho Power to make the requested information immediately
available for inspection on its premises where the inspecting party can then identify only those
portions for copying that are deemed necessary for the preparation of its presentation in this case.
See Protective Agreement, 'il2.
ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW
Idaho Power Company is an electrical corporation providing electric service to the
public within the State of Idaho Idaho Code 99 61-118 , 61-119, and is operating as a public
utility. Idaho Code 9 61-129.
The Idaho Public Utilities Commission has jurisdiction over Idaho Power Company,
its Application for a Certificate of Public Convenience and Necessity for the Evander Andrews
Power Plant, and the issues involved in this case by virtue of Title 61 , Idaho Code, and more
specifically Idaho Code 99 61-129, 61-501 , 61-502, 61-503 , 61-515, 61-520, 61-523 , 61-524
61-526 et seq.
There are sufficient safeguards in the parties Protective Agreement, the
Commission s Rules of Procedure, the Idaho Trade Secrets Act, and the Idaho Rules of
Professional Conduct to protect any claimed confidential information that Idaho Power is
required to disclose from being disclosed to Heinz s competitors.
ORDER
IT IS HEREBY ORDERED that the Industrial Customers of Idaho Power s Motion
to Compel is granted in part as to Request Nos. 50 and 52, and is denied in part as to Request
Nos. 49 and 51.
IT IS FURTHER ORDERED that Idaho Power shall fully and completely respond to
the Third Confidential Production Request of the Industrial Customers of Idaho Power, No. 50
and No. 52. Idaho Power shall make the requested information immediately available for
inspection on its premises where the inspecting party can then identify only those portions for
ORDER NO. 30136
copying that are deemed necessary. This will minimize the amount of confidential information
being disseminated. This information is to be made available to the parties on or before October
, 2006.
DONE by Order ofthe Idaho Public Utilities Commission at Boise, Idaho this ?1-J..
day of September 2006.
t2t IJdU-
PAUL KJELLANDER, PRESIDENT
ARSHA H. SMITH, COMMISSIONER
ATTEST:
fI
\ (
Je ~D,Te;ell tJ
Cdfumission Secretary
O:IPC-O6-09 dw4
ORDER NO. 30136