52 Pa. Code § 5.365 - Orders to limit availability of proprietary information
(a)
General rule for adversarial
proceedings. A petition for protective order to limit the disclosure
of a trade secret or other confidential information on the public record will
be granted only when a party demonstrates that the potential harm to the party
of providing the information would be substantial and that the harm to the
party if the information is disclosed without restriction outweighs the
public's interest in free and open access to the administrative hearing
process. A protective order to protect trade secrets or other confidential
information will apply the least restrictive means of limitation which will
provide the necessary protections from disclosure. In considering whether a
protective order to limit the availability of proprietary information should be
issued, the Commission or the presiding officer should consider, along with
other relevant factors, the following:
(1)
The extent to which the disclosure would cause unfair economic or competitive
damage.
(2) The extent to which the
information is known by others and used in similar activities.
(3) The worth or value of the information to
the party and to the party's competitors.
(4) The degree of difficulty and cost of
developing the information.
(5)
Other statutes or regulations dealing specifically with disclosure of the
information.
(b)
General rule for nonadversarial proceedings. A petition for a
protective order limiting the disclosure of a trade secret or other
confidential information in a nonadversarial proceeding shall be referred to
the Law Bureau for recommended disposition by the Commission. The Commission
will not disclose material that is the subject of a petition for protective
order under this provision during the pendency of a request.
(c)
Restrictions.
(1) A protective order to restrict disclosure
of proprietary information may require that a party receive, use or disclose
proprietary information only for the purposes of preparing or presenting
evidence, cross-examination or argument in the proceeding, or may restrict its
inclusion in the public record.
(2)
A protective order may require that parts of the record of a proceeding which
contain proprietary information including exhibits, writings, direct testimony,
cross-examination, argument and responses to discovery will be sealed and
remain sealed unless the proprietary information is released from the
restrictions of the protective order by agreement of the parties, or pursuant
to an order of the presiding officer or the Commission.
(3) A public reference to proprietary
information by the Commission or by a party afforded access thereto must be to
the title or exhibit reference in sufficient detail to permit persons with
access to the proprietary information to fully understand the reference and not
more. The proprietary information must remain a part of the record, to the
extent admitted, for purposes of administrative or judicial review.
(4) Prior to the issuance of a protective
order, a party may not refuse to provide information which the party reasonably
believes to be proprietary to a party who agrees to treat the information as if
it were covered by a protective order until the presiding officer or the
Commission issues the order or determines that issuance of the order would not
be appropriate. The party claiming the privilege shall file a petition for
protective order under subsection (a) within 14 days of the date the request
for information was received.
(5) A
party receiving proprietary information under this section retains the right,
either before or after receipt of the information, to challenge the legitimacy
of the claim that the information is proprietary and to challenge the
admissibility of the proprietary information.
(d)
Access to representatives of
parties. Proprietary information provided to a party under this
section shall be released to the counsel and eligible outside experts of the
receiving party unless the party who is releasing the information demonstrates
that the experts or counsel previously violated the terms of a recent
protective order issued by the Commission. To be eligible to receive
proprietary information, the expert, subject to the following exception, may
not be an officer, director, stockholder, partner, owner or employee of a
competitor of the producing party. An expert who is a stockholder, partner or
owner of a competitor or affiliate is eligible unless the ownership interest is
valued at more than $10,000 or constitutes a more than 1% interest, or both.
Other persons may not have access to the proprietary information except as
authorized by order of the Commission or of the presiding officer.
(e)
Special restrictions. A
protective order which totally prohibits the disclosure of a trade secret or
other confidential information, limits the disclosure to particular parties or
representatives of parties, except as permitted by subsection (c), or which
provides for more restrictive rules than those permitted in subsections (b) and
(c) will be issued only in extraordinary circumstances and only when the party
from whom the information is sought demonstrates that a greater restriction is
necessary to avoid severe and extreme prejudice.
(f)
Return of proprietary
information. A party providing proprietary information under this
section may request that the parties receiving the information return the
information and the copies thereof to the party at the conclusion of the
proceeding, including appeals taken.
(g)
Confidential security
information. Challenges to a public utility's designation of
confidential security information or requests in writing to examine
confidential security information in nonadversarial proceedings are addressed
in Chapter 102 (relating to confidential security information).
Notes
The provisions of this § 5.365 issued under the Public Utility Code, 66 Pa.C.S. § § 501, 504-506 and 1501.
This section cited in 52 Pa. Code § 121.4 (relating to filing and Commission review procedures).
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