California Code of Regulations
Title 20 - Public Utilities and Energy
Division 2 - State Energy Resources Conservation and Development Commission
Chapter 7 - Administration
Article 2 - Disclosure of Commission Records
Section 2505 - Designation of Confidential Records

Universal Citation: 20 CA Code of Regs 2505

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(a) Third Parties.

(1) Any private third party giving custody or ownership of a record to the Commission shall specify if it should be designated a confidential record and not publicly disclosed. An application for confidential designation shall:
(A) be on a sheet or sheets separate from, but attached to, the record;

(B) specifically indicate those parts of the record that should be kept confidential;

(C) state the length of time the record should be kept confidential, and justification for the length of time;

(D) cite and discuss the provisions of the Public Records Act or other law that allow the Commission to keep the record confidential. If the applicant believes that the record should not be disclosed because it contains trade secrets or its disclosure would otherwise cause loss of a competitive advantage, the application shall also state the specific nature of that advantage and how it would be lost, including the value of the information to the applicant, and the ease or difficulty with which the information could be legitimately acquired or duplicated by others;

(E) state whether the information may be disclosed if it is aggregated with other information or masked to conceal certain portions, and if so the degree of aggregation or masking required. If the information cannot be disclosed even if aggregated or masked, the application shall justify why it cannot;

(F) state how the information is kept confidential by the applicant and whether it has ever been disclosed to a person other than an employee of the applicant, and if so under what circumstances;

(G) contain the following certification executed by the person primarily responsible for preparing the application:
1. "I certify under penalty of perjury that the information contained in this application for confidential designation is true, correct, and complete to the best of my knowledge," and

2. State whether the applicant is a company, firm, partnership, trust, corporation, or other business entity, or an organization or association, and

3. State that the person preparing the request is authorized to make the application and certification on behalf of the entity, organization, or association.

(H) If the record contains information that the applicant has received from another party who has demanded or requested that the applicant maintain the confidentiality of the information, the applicant shall address the items in (B) through (F) of this subsection to the greatest extent possible and shall explain the demand or request made by the original party and the reasons expressed by the original party. If the basis of an application for confidential designation is an order or decision of another public agency pursuant to the Public Records Act or the Freedom of Information Act, the application shall include only a copy of the decision or order and an explanation of its applicability. The Executive Director shall consult with that agency before issuing a determination.

(2) A deficient or incomplete application shall be returned to the applicant with a statement of its defects. The record or records for which confidentiality was requested shall not be disclosed for fourteen days after return of the application to allow a new application to be submitted except as provided in Section 2507 of this Article.

(3) Executive Director's Determination.
(A) The Executive Director shall, after consulting with the Chief Counsel, determine if an application for confidential designation should be granted. An application shall be granted if the applicant makes a reasonable claim that the Public Records Act or other provision of law authorizes the Commission to keep the record confidential. The Executive Director's determination shall be in writing and shall be issued no later than thirty days after receipt of a complete application. The Executive Director or the Chief Counsel may, within fourteen days after receipt of an application for confidential designation, require the applicant to submit any information that is missing from the application. If the missing information is not submitted within fourteen days of receipt of the request by the Executive Director or Chief Counsel, the Executive Director may deny the application.

(B) If an application is denied by the Executive Director, the applicant shall have fourteen days to request that the Commission determine the confidentiality of the record. If the applicant makes such a request, the Commission shall conduct a proceeding pursuant to the provisions of Section 2508.

(C) After an application has been denied, the information sought to be designated confidential shall not be available for inspection or copying for a period of fourteen days, except as provided in Section 2507 of this Article.

(4) Repeated Applications for Confidential Designation. If an applicant is seeking a confidential designation for information that is substantially similar to information that was previously deemed confidential by the Commission pursuant to Section 2508, or for which an application for confidential designation was granted by the Executive Director pursuant to subdivision (a)(3)(A) of this section, the new application need contain only a certification, executed under penalty of perjury, stating that the information submitted is substantially similar to the previously submitted information and that all the facts and circumstances relevant to confidentiality remain unchanged. An application meeting these criteria will be approved.

(5) Automatic Designation. Information submitted by a private third party shall be designated confidential without an application for confidentiality if the requirements of subsections (a)(5)(A) and (B) of this Section are met. If the requirements of subsection (a)(5)(A) and (B) are not met, the Executive Director shall inform the private third party that the record will not be deemed confidential. Except as provided in Section 2507 of this Article, the record for which confidentiality was requested shall not be disclosed for fourteen days to allow the requirements of subsection (a)(5)(A) and (B) to be met or to allow the filing of an application pursuant to subsection (a)(1) of this section.
(A) The entity submitting the information shall label each individual item of the submittal that is entitled to be designated confidential.

(B) The entity submitting the information shall attest under penalty of perjury that the information submitted has not been previously released and that it falls within one of the following categories:
1. Information that is derived from energy consumption metering, energy load metering research projects, or energy surveys provided pursuant to Section 1343 or 1344 of Article 2 of Chapter 3, and that is one or more of the following:
a. for the residential customer sector and the commercial customer sector -- customer identifiers, energy consumption, and any other information that could allow a third party to uniquely identify a specific respondent;

b. industrial major customer sector -- all information;

c. survey design information -- all information used to design a survey, stratify billing records, devise a sample scheme, select a sample, sample specific end-users for participation in a survey or a pre-test of a questionnaire or interview form.

2. Energy sales data provided pursuant to Section 1306, 1307, or 1308(c) of Article 1 of Chapter 3, if the data is at the greatest level of disaggregation required therein.

3. Information submitted by each LSE that is not a UDC that consists of:
a. Load forecasts and supporting customer projections by UDC distribution service area submitted pursuant to subdivision (b) of Section 1345 of Article 2 of Chapter 3.

b. Retail electricity price forecasts submitted pursuant to subdivision (a) of Section 1348 of Article 2 of Chapter 3.

4. Fuel cost data provided for individual electric generators under Section 1304 and fuel price data provided pursuant to subdivision (d) of Section 1308 of Article 1 of Chapter 3.

5. Records of Native American graves, cemeteries, and sacred places maintained by the Native American Heritage Commission.

6. Electric power plant-specific hourly generation data.

7. Electric power plant name, nameplate capacity, voltage at which the power plant is interconnected with a UDC system or transmission grid, address where the power plant is physically located, power plant owner's full legal name and address or longitude and latitude, if power plant is privately owned and its identity as a power plant is not public knowledge, (e.g., backup generator or solar installation at residence or business) under Section 1304 of Article 1 of Chapter 3.

8. Information the release of which is prohibited pursuant to the Information Practices Act (Civil Code Section 1798 et seq.)

9. All information provided pursuant to Section 1314 of Article 1 of Chapter 3 and Section 1353 of Article 2 of Chapter 3.

(6) Failure to request confidentiality at the time a record is submitted to the Commission does not waive the right to request confidentiality later; however, once a record has been released to the public, the record can no longer be deemed confidential. Although a record designated as confidential shall remain confidential during the application and appeal process, subject to the provisions of Section 2507(b) of this Article, the application itself is a public document and can be released.

(b) Governmental Entities. When another federal, state, regional, or local agency or state-created private entity, such as the California Independent System Operator, possesses information pertinent to the responsibilities of the Commission that has been designated by that agency as confidential under the Public Records Act, or the Freedom of Information Act, the Commission, the Executive Director, or the Chief Counsel may request, and the agency shall submit the information to the Commission without an application for confidential designation. The Commission shall designate this information confidential.

(c) Commission Generated Information

(1) Contracts and Proposals
(A) Information received by the Commission in response to a solicitation shall be kept confidential by the Commission and its evaluators before posting of the notice of the proposed award. The solicitation document shall specify what confidential information the proposal may contain and how that confidential information will be handled after the posting of the notice of the proposed award.

(B) The Executive Director, in consultation with the Chief Counsel, may designate certain information submitted under a contract as confidential in accordance with the Public Records Act or other provisions of law. The designation and its basis shall be in writing and contained in the contract governing the submittal of the information or in a separate statement. The contract or written statement shall also state exactly what information shall be designated confidential, how long it shall remain confidential, the procedures for handling the information, and all other matters pertinent to the confidential designation of the information.

(2) All data generated by the Commission that is the same type as the data described in Section 2505(a)(5)(B) of this Article shall be kept confidential by the Commission.

(d) All documents designated confidential pursuant to this Section shall be treated as confidential by the Commission except as provided in Section 2507.

1. Amendment filed 12-16-81; effective thirtieth day thereafter (Register 81, No. 51).
2. Amendment filed 7-6-98; operative 8-5-98 (Register 98, No. 28).
3. Amendment of subsection (a)(5)(B)1., repealer of subsection (a)(5)(B)4., new subsections (a)(5)(B)1.a.-(a)(5)(B)5., subsection renumbering, amendment of subsection (c) and new subsection (c)(3) filed 2-23-2001; operative 2-23-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 8).
4. Amendment filed 6-3-2002; operative 6-3-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 23).
5. Amendment of section and NOTE filed 7-3-2007; operative 7-3-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 27).
6. New subsection (a)(5)(B)9. filed 5-29-2018; operative 7-1-2019 (Register 2018, No. 22).
7. Repealer of subsection (c)(1), subsection renumbering and repealer of subsection (e) filed 12-30-2021; operative 1-1-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 53).

Note: Authority cited: Sections 25213 and 25218(e), Public Resources Code; and Section 6253(a), Government Code. Reference: Sections 25223, 25322, 25364 and 25366, Public Resources Code; and Bakersfield City School District v. Superior Court (2004) 118 Cal.App.4th 1041.

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