Missouri Code of State Regulations
Title 20 - DEPARTMENT OF COMMERCE AND INSURANCE
Division 4240 - Public Service Commission
Chapter 2 - Practice and Procedure
Section 20 CSR 4240-2.135 - Confidential Information
Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This rule prescribes the procedures for handling confidential information in cases before the commission.
(1) All items filed in case proceedings before the commission shall be open to the public unless protected pursuant to this rule or otherwise protected by law.
(2) Confidential Designation.
(3) Protective Order.
(4) The commission may order greater protection than that provided by a confidential designation upon a motion explaining what information must be protected, the harm to the disclosing entity or the public that might result from disclosure of the information, and an explanation of how the information may be disclosed while protecting the interests of the disclosing entity and the public.
(5) When a party seeks discovery of information that the party from whom discovery is sought believes to be confidential, the party from whom discovery is sought may designate the information confidential.
(6) Confidential information may be disclosed only to the attorneys of record for a party and to employees of a party who are working as subject-matter experts for those attorneys or who intend to file testimony in that case, or to persons designated by a party as an outside expert in that case.
(7) Any employee of a party or outside expert retained by a party that wishes to review confidential information shall first certify in writing that such expert or employee of a party will comply with the requirements of this rule.
(8) If information to be disclosed in response to a discovery request is information concerning another entity-whether or not a party to the case-that the other entity has indicated is confidential, the disclosing party shall notify the other entity of its intent to disclose the information. If the other entity informs the disclosing party that it wishes to protect the information, the disclosing party shall designate the information as confidential under the provisions of this rule.
(9) Any party may use confidential information in prefiled testimony, in a pleading, at hearing, or in a brief if the same level of confidentiality assigned by the disclosing party, or the commission, is maintained. Before including nonpublic information that it has obtained outside this proceeding in its pleading or testimony, a party shall ascertain from the source of the information whether that information is claimed to be confidential.
(10) Any prefiled testimony that contains information designated as confidential shall be filed with both a public and a nonpublic version as follows:
(11) At any time after the filing of discovery, testimony, brief, or pleading that contains information designated as confidential, the commission may challenge the designation of the discovery, testimony, brief, or pleading. A party may also challenge such a designation at any time by filing an appropriate motion with the commission.
(12) All live testimony, including cross-examination and oral argument, which reveals information that is designated as confidential may be offered only after the hearing room is cleared of all persons except those persons to whom the confidential information is available under this rule. The transcript of such live testimony or oral argument shall be kept under seal and copies shall be provided only to the commission and attorneys of record. The contents of such transcripts shall not be disclosed to anyone other than those permitted access to the designated information under this rule.
(13) All persons who have access to information under this rule shall keep the information secure and may neither use nor disclose such information for any purpose other than preparation for and conduct of the proceeding for which the information was provided. This rule shall not prevent the commission's staff or the Office of the Public Counsel from using confidential information obtained under this rule as the basis for additional investigations or complaints against any public utility.
(14) After receiving a notice of appeal, the commission will deliver confidential testimony constituting part of the record before the commission to the reviewing court under seal, unless otherwise directed by the court.
(15) Within ninety (90) days after the completion of a proceeding, including judicial review, all copies of all confidential information, testimony, exhibits, transcripts, or briefs in the possession of any party shall be returned to the party claiming a confidential interest in such information if that party requests that the information be returned. Otherwise, the information shall be destroyed by the party possessing such information. Any notes pertaining to such information shall be destroyed.
(16) The provisions of sections (6), (7), and (15) of this rule do not apply to officers or employees of the commission or to the public counsel or employees of the Office of the Public Counsel. The officers or employees of the commission and the public counsel and employees of the Office of the Public Counsel are subject to the nondisclosure provisions of section 386.480, RSMo. Neither the officers or employees of the commission, nor the public counsel and the employees of the Office of the Public Counsel shall use or disclose any information obtained in discovery for any purpose other than in the performance of their duties.
(17) Outside experts of the staff of the commission or the Office of the Public Counsel who have been contracted to be witnesses in the proceeding shall have access to designated information and testimony on the same basis as the staff of the commission and the Office of the Public Counsel except that the outside expert shall comply with the provisions of sections (7) and (15). Outside experts of the staff of the commission and the Office of the Public Counsel who have not been contracted to be witnesses in the proceeding shall be subject to all provisions of this rule.
(18) A claim that information is confidential constitutes a representation to the commission that the claiming party has a reasonable and good faith belief that the subject document or information is confidential pursuant to the section of this rule cited as justification for the designation.
(19) The commission may waive or grant a variance from any provision of this rule for good cause shown.
(20) Any reference in any statute or other regulation of this commission that refers to proprietary or highly confidential information shall be interpreted to mean confidential information under this rule.
*Original authority: 386.040, RSMo 1939, amended 1943, 1965 and 386.410, RSMo 1939, amended 1947, 1977, 1996.