DR 97-059
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
RETAIL RATE INVESTIGATION
Motion for Protective Order
Order Granting Confidential Treatment
O R D E R N O. 23,001
August 31, 1998
On June 9, 1998, Public Service Company of New
Hampshire ("PSNH") filed with the New Hampshire Public
Utilities Commission ("Commission"), pursuant to N.H. Admin.
Rules Puc 204.06, a Motion for Protective Order Re: INPO
Documents ("Motion"). This Motion seeks confidential
treatment for reports prepared by the Institute of Nuclear
Power Operations ("INPO") for Millstone Unit 3, which had
been requested by the Staff of the Public Utilities
Commission ("Staff") in a data request.
PSNH alleges in its Motion that INPO is a private,
non-profit association of electric utility companies
operating nuclear power plants in the United States, and
that Northeast Utilities, PSNH's parent holding company, is
a member of INPO. PSNH alleges further: that INPO prepares
periodic reports and other studies and evaluations
concerning the operation of INPO members' nuclear plants;
that such documents are prepared on a confidential basis and
are intended for use only by the member utility whose
nuclear plant is subject to an INPO evaluation; that INPO
limits the distribution of such documents to its members;
that such documents are subject to INPO's copyright; and,
that PSNH and its affiliated companies do not voluntarily
provide copies of such documents to the general public, or
to any federal or state governmental agency. PSNH states
that its affiliate, Connecticut Light and Power Company
("CL&P"), has provided INPO documents to the Connecticut
Department of Public Utility Control, but only under a
protective order.
Finally, PSNH alleges: that unprotected
dissemination of INPO materials would adversely impact the
effectiveness of future INPO evaluations and studies; that
these documents constitute proprietary information which
required significant effort and cost to produce and would
take significant effort and cost by others to produce; that
INPO investigations require a self critical analysis by the
member company; and, that the confidentiality of such self
critical analysis should be maintained in order to foster
free expression by employees of nuclear generating plants.
PSNH proposes that access to the INPO documents be
made available to the Staff who requested them and the
Office of Consumer Advocate under the procedures used for
maintaining confidential documents.
Partial objections to PSNH's Motion were filed by
the Governor's Office of Energy and Community Services
("Governor's Office") and by the Campaign for Ratepayers
Rights ("CRR"). The Governor's Office and CRR do not object
to PSNH's request for confidential treatment of the INPO
documents so long as they have access to these materials by
entering into a reasonable confidentiality agreement. Both
Parties state their willingness to enter into such an
agreement and abide by its terms to prevent unwarranted
disclosure. They do object, however, to the materials only
being made available to Staff and the OCA under the proposed
protective order.
PSNH's motion presents facts demonstrating that
the Information meets the requirements of Puc 204.06(c),
giving evidence showing the documents in question are not
general public knowledge or published elsewhere and that
measures have been taken to prevent dissemination in the
ordinary course of business. Based on the company's
representations, under the balancing test we have applied in
prior cases, e.g.,Re New England Telephone Company
(Auditel), 80 NHPUC 437 (1995); Re Bell Atlantic, Order No.
22,851 (February 17, 1998); Re EnergyNorth Natural Gas,
Inc., Order No. 22,859 (February 24, 1998), we find that the
benefits to PSNH of non-disclosure in this case outweigh the
benefits to the public of disclosure. At the same time, we
also find merit in the arguments of the Governor's Office
and CRR that parties to this case should have access to
these materials upon entering into a reasonable
confidentiality agreement with PSNH. Therefore, as part of
this order, we require PSNH to execute a reasonable
confidentiality agreement with the Parties. In the event
PSNH and the Parties are unable to promptly agree to terms,
Commission Staff will mediate appropriate terms.
Based upon the foregoing, it is hereby
ORDERED, that PSNH's Motion for a Protective Order
for the INPO documents is GRANTED; and it is
FURTHER ORDERED, that PSNH and the parties shall
execute a confidentiality agreement within twenty-one days
of the date of this Order; and it is
FURTHER ORDERED, that this Order is subject to
reconsideration upon a showing of good cause by any Party or
upon the Commission's right of reconsideration pursuant to
RSA 91-A should circumstances warrant. In that event, PSNH
shall have the burden of proving that the material is
entitled to protected status. However, all Parties shall
continue to treat the material as protected information in
accordance with the terms of this order, pending resolution
of the dispute as to its status by the Commission. In the
event that any Party seeks to use the protected material in
the course of any hearings or as part of the record of these
proceedings, the portion of the record containing the
protected information shall be placed under seal.
By Order of the Public Utilities Commission of New
Hampshire this thirty-first day of August, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary