1. (a) An applicant may file a written motion requesting that the Arkansas Public Service Commission enter a protective order of nondisclosure (“protective order”) (see also Arkansas Code § 23-2-316).

2. (b) Timing generally.

   1. (1)

      1. (A) If the information sought to be protected is required to be or will be a part of any filed document other than discovery, including but not limited to an initial application or petition, applicant shall apply for a protective order:

3. (i) As soon as reasonably practicable; and

   1. (ii) To the greatest extent practicable not less than thirty (30) days before the required or desired filing date to allow a reasonable time for entry of the protective order before the filing date.

      1. (B) For purposes of a General Rate Change Application filed pursuant to Subchapter 8 of this part, applicant shall apply for a protective order no later than thirty (30) days after filing the notice of intention to file pursuant to 23 CAR § 462-806 and Arkansas Code § 23-4-401.

   2. (2) If the information sought to be protected is requested by discovery, applicant shall apply for a protective order:

      1. (A) As soon as reasonably practicable after receipt of the discovery request so as to avoid any delays in responding to discovery; and

      2. (B) To the greatest extent practicable, no later than ten (10) days after receipt of the discovery request.

         1. (c) Grounds for entering a protective order.

   3. (1) Applicant may request an interim protective order by an assertion supported by testimony or affidavit that the information meets the following criteria:

      1. (A) The information sought has not been publicly disclosed;
      2. (B) The information has been maintained as confidential while in applicant’s possession; and

      3. (C) Disclosure of the information would have one (1) or more of the following consequences:

         1. (i) Applicant could suffer material damage to its competitive or financial position;
         2. (ii) A proprietary fact or trade secret of applicant or a third party would be revealed; and/or
         3. (iii) The public interest would be impaired.
   4. (2) Upon challenge of an interim protective order by any party at any time, applicant has the burden of establishing by a preponderance of the evidence that the information meets the above criteria.

   5. (3) An interim protective order shall become a final protective order by operation of law upon the issuance by the Arkansas Public Service Commission of a formal order closing the docket in which the interim protective order was issued.

      1. (d) Arkansas Public Service Commission interim order on information. The Arkansas Public Service Commission may decide the motion by:
   6. (1) Declining to enter an interim protective order based on the following findings and/or conclusions: The applicant has not established adequate grounds to refuse to disclose the information and therefore the information shall be made available to the other parties and to the public without restriction; or

   7. (2) Entering an appropriate interim protective order that includes but is not limited to the following findings and/or conclusions:

      1. (A) The applicant has shown grounds for nondisclosure under subdivision (b)(1) of this section but the information appears to the Arkansas Public Service Commission to be relevant to the case at hand;
      2. (B) The applicant’s information should therefore be made available only to the commissioners, commissioners’ staff, and representative or representatives of the parties directly involved in the case;
      3. (C) No one else, including representatives of the parties who are not directly involved in the case at hand, the press, and the public shall have access to the information;
      4. (D) The Arkansas Public Service Commission may, for good cause shown, further limit the availability of the applicant’s information; and
      5. (E) Of necessity, those portions of the hearings that may involve the sensitive information that is the subject of the protective order shall be closed to all except those persons to whom the information was made available under this subpart (see Arkansas Code § 23-2-316).
4. (e) For each specific item of information subject to a protective order that is filed or submitted in a docket, the applicant shall affix a written confidential information transmittal cover document in the form prescribed by the Arkansas Public Service Commission that is accessible on its website.

5. (f)

   1. (1) Any party may contest at a future date, upon reasonable notice, applicant’s continuing entitlement to protection from public disclosure of all or any portions of any information subject to a protective order.
   2. (2) The party shall promptly file an objection if such party determines that any portion of the information should be removed from the scope of the protective order.

   3. (3) Upon challenge of an interim protective order by any party, the Arkansas Public Service Commission may:

      1. (A) Modify its interim protective order; or
      2. (B) Enter any further orders as appropriate.
   4. (4) After notice to the parties and after any hearing that may be necessary, the Arkansas Public Service Commission may issue any appropriate final protective order as may be needed.

6. (g) Affidavit of nondisclosure.

   1. (1)

      1. (A) If the Arkansas Public Service Commission orders limited disclosure pursuant to this section, the Arkansas Public Service Commission or applicant may require that every individual granted access to the information, subject to the order, sign an affidavit of nondisclosure in the form prescribed by the Arkansas Public Service Commission.

      2. (B) The affidavit may bind those persons having access to the information to the following provisions:

         1. (i) The individual shall not disclose the information to any person not immediately involved in the docket or matter;
         2. (ii) The information may be used only for pursuing the docket or matter and for no other purpose at all, but specifically not for competitive business purposes;
         3. (iii) Improper disclosure by an individual may result in civil liabilities or sanctions; and
         4. (iv) If the interim protective order is subsequently amended and/or further interim or final protective orders are entered in the docket, the individual shall be bound by the same terms as they relate to any additional protected information that may be protected by subsequent protective orders without the need for the execution of further affidavits of nondisclosure in the docket.
   2. (2) In the event the Arkansas Public Service Commission further limits the availability of the applicant’s information, the Arkansas Public Service Commission may further require additional affidavits, certifications, or other actions of individuals granted access other than individuals for staff or the Attorney General.

7. (h) Affidavits of nondisclosure shall be filed in the docket in which the protective order was granted but need not be served on the parties to the docket.

   1. (i) Information protected by a protective order that is filed or provided to parties shall comply with this part concerning form requirements for protected information.

Codification Notes: This section was promulgated as Rule 4.04 of the Rules of Practice and Procedure prior to codification in the Code of Arkansas Rules.