1.
Purpose and Scope
The purpose of this rule is to discourage the practice of
filing non-confidential information confidentially, while providing a fair
procedure for utilities and other filers to protect truly confidential
information such as trade secrets or sensitive financial information. The
Commission prefers that information be filed publicly, rather than
confidentially. This Rule shall not be construed to protect information to any
greater degree than that already afforded by applicable Mississippi law,
including the Mississippi Public Records Act, Miss. Code Ann. §
25-61-3,
-9. Before any information is filed confidentially pursuant to this Rule, the
utility or other filer shall consider whether such information would be deemed
confidential under any other applicable state or federal law. If the
information would not be confidential under any other applicable law, then the
information shall not be filed confidential pursuant to this Rule.
2.
Definition
"Confidential information" means information, documents, or
records that are of a confidential or proprietary nature pursuant to
Mississippi or other applicable law.
3.
Trade Secrets
Pursuant to Miss. Code Ann. §
75-26-3,
"trade secrets" may be confidential and may include but are not limited to,
information, including a formula, pattern, compilation, program, device,
method, technique or process, that: (a) derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
4.
Specific Items
a. Information included in a rate schedule
pursuant to Miss. Code Ann. §
77-3-35
is not confidential and shall not be treated as such.
b. Any confidential information or items that
can be reasonably redacted from any document or material shall be so redacted,
and the document or material shall be filed publicly without seeking a
confidential designation. The utility or other filer must still comply with the
applicable justification requirements of section 6(b) of this Rule.
c. In accordance with Miss. Code Ann. §
79-23-1(1),
(2), and §
25-61-9(1),
information related to the establishment of, or changes in, rates regulated by
the Commission shall be presumed to be accessible public records. If a utility
considers such information confidential, the utility shall follow the
procedures set out in section 4(b) or section 6 of this Rule.
d. Information that has been publicly filed
in any other forum (for example, but not limited to, the Federal Energy
Regulatory Commission, with the clerk of a court, or other agency) shall not be
filed as confidential under this Rule.
e. If a utility seeks confidential
designation for any information filed in response to a data request, the
utility shall follow section 6(c) of this Rule.
5.
Required Placement In
Envelope
For paper copies, the page(s) containing the trade secret
or confidential information shall be placed in an envelope other than white.
Each page placed in the envelope shall be marked as "TRADE SECRETS" or
"CONFIDENTIAL".
6.
Procedure
a. Unless redacted and filed
in accordance with section 4(b) of this Rule, whenever a party considers
information contained in pleadings or other documents are trade secrets,
confidential or otherwise exempt from public disclosure, the party shall
designate that the information is protected by law from public inspection,
examination or copying. Trade secrets or confidential information contained in
documents will be removed and replaced by the filing party with a page marked:
"This document contains trade secrets or confidential information and is
separately filed." All information for which no assertion of protection from
public inspection, examination and copying is made will be placed in files
available for public inspection. Trade secrets, confidential information and
other records exempt from public inspection shall be separately stored in a
secured location with limited access and safeguarded from unauthorized
disclosure.
b. A filing seeking
confidential designation of information must be made, in writing no later than
simultaneously with the submission of said information. The utility or any
other filer shall provide the legal and factual basis for its assertion that
the information qualifies as either confidential or a trade secret pursuant to
Mississippi law and shall state why the information cannot be reasonably
redacted and filed publicly. The justification by the utility or other filer
for classification of the item as confidential or a trade secret must contain
sufficient detail to permit a reasoned analysis by the Commission. If the
Commission is unsatisfied with the justification, the Commission, at its sole
discretion, may deny the confidential designation by written order, require the
utility or other filer to provide further clarification or briefing or hold a
hearing to resolve the confidential designation issue.
c. Data Requests. If a utility or other party
is required to submit confidential information pursuant to a data request, the
information must be designated as confidential simultaneous with the filing of
said information; however, a written justification of its confidentiality shall
be submitted to the Commission within 14 calendar days after the information
has been filed. If a utility or other party fails to provide written
justification, the Commission, at its sole discretion, may deny the
confidential designation by written order, require the utility or other party
to provide justification or briefing or hold a hearing to resolve the
confidential designation.
d. A
utility may petition the Commission for a waiver of the justification
requirement for particular sections of certain routine filings. Waivers can
only by granted for a period of time not to exceed three (3) years. Waivers can
be rescinded by the Commission at its discretion and for any reason. The
Commission may require conditions to be met by the utility prior to granting a
waiver. Conditions may include, but are not limited to:
1 Filings which are made on a recurring or
periodic basis; or
2 Information
which has regularly been classified as confidential by the Commission in the
past.
e. Once
information is filed pursuant to and in satisfaction of this Rule, it will be
treated as confidential. If the Commission denies the designation of
information as confidential or a trade secret, the information will be kept
confidential until the time for filing an appeal from a Commission order has
expired. If an appeal is filed, the Commission will keep the material
confidential until judicial review is complete.
f. No issue related to confidential
designation shall constitute a basis to stay a docketed proceeding if the
Commission and Staff have received access to the information in dispute and
other parties have been given the opportunity to enter into protective
agreements to obtain access to such information.
7.
Protective Agreements
In proceedings before the Commission involving trade
secrets or other confidential information, parties may enter into protective
agreements to facilitate and safeguard the exchange of necessary information.
Protective agreements may include procedures for copying, exchanging, serving,
safeguarding, or challenging the characterization of trade secrets or
confidential information. The Commission and the Staff shall not be a party to
protective agreements and will not be bound by the terms of protective
agreements.
8.
Review of Confidentiality
a. The
Commission may, upon its own initiative, address the redaction or confidential
designation of any information at any time. The Commission may determine the
confidentiality of any information based solely on the justification submitted
by the utility or other filer. The Commission may require any briefing from the
utility or other filer it deems necessary to help the Commission resolve the
confidentiality determination. The Commission may notice and hold any hearing
it deems necessary to resolve the confidentiality determination.
b. Except for the Public Utilities Staff, any
party to a proceeding or any other person or entity that wishes to review or
challenge the filing or designation of confidential information is referred to
the Mississippi Public Records Act and Commission Rule 4.
c. The Commission, at its sole discretion,
may designate one of its members or attorneys, including any special assistant
attorney general assigned to the Commission, to act as a hearing examiner
regarding any and all matters relating to confidentiality. Such officer may
exercise all authority held by the Commission in matters related to this
Rule.
