4 CCR 723-16
BASIS, PURPOSE, AND STATUTORY AUTHORITY.
These rules are issued under the authority of §§ 40-2-108, 40-3-102, and 40-15-107, C.R.S. They establish procedures consistent with the mandate of § 24-72-201, C.R.S., that all public records shall be open for inspection by any person at reasonable times, subject to restrictions specifically provided by law. The rules establish the procedures to be used by: (1) a party, in a formal docket, filing information with the Commission that the party claims is confidential and therefore should not be subject to public inspection;
(2) a person, outside of an open formal Commission docket, filing information with the Commission that the person claims is confidential and therefore should not be subject to public inspection; and (3) the Director, in responding to requests to inspect information under Colorado's Public Records Law, §§ 24-72- 201 et seq., C.R.S.
RULE (4 CCR) 723-16-1.. APPLICABILITY.
These rules apply to all persons filing information with or seeking information from the Commission. They also apply to the Commission, Director or a presiding officer to the extent they govern the Commission's responses to claims of confidentiality in a formal docket, requests to restrict public inspection of information outside of a formal docket, or for information under the Public Records Law. RULE (4 CCR) 723-16-2.. DEFINITIONS.
Terms defined in §§ 24-72-201 et seq., C.R.S., the Colorado Public Records Law, and Title 40, C.R.S., the Public Utilities Law, shall have the same meaning when used in these rules. In addition, the following terms mean:
723-16-2.1 Filing Under Seal. The process of filing information with the Commission in a sealed, specially marked envelope to indicate that the filing party claims that the information is confidential. 723-16-2.2 Presiding Officer. The Chair of the Commission, an Administrative Law Judge, or an individual selected by the Commission to preside in a formal Commission docket. RULE (4 CCR) 723-16-3.. PROCEDURES RELATING TO INFORMATION PRODUCED IN A FORMAL COMMISSION DOCKET.
723-16-3.1 Confidential Information. All documents, data, information, studies, computer programs, and other matters filed with the Commission in any form in a proceeding, or produced in response to any interrogatories or requests for information, subpoenas, depositions, or other modes of discovery, and all notes taken or copies made thereof, that are claimed to be a trade secret or confidential in nature (herein referred to as “confidential information”) shall be furnished under the terms of this Rule 3. All persons accorded access to such confidential information, shall treat such information as constituting trade secret or confidential information and shall neither use nor disclose such information except for the purpose of the proceeding in which such information is obtained and in accordance with this Rule 3.
723-16-3.1.1 A claim of confidentiality constitutes a representation to the Commission that the claiming party has a reasonable and good faith belief that the subject document or information is, in fact, confidential under applicable law, including §§ 24-72-201 et. seq., C.R.S. If a claim of confidentiality is made in violation of this Rule 3.1.1, the Commission may impose an appropriate sanction upon the claiming party, including an order to pay to other parties the amount of reasonable expenses incurred because of the claim of confidentiality, including a reasonable attorney's fee. 723-16-3.1.2 The Commission's acceptance of information pursuant to a claim of confidentiality shall not be construed to be an agreement or ruling by the Commission that the subject information is, in fact, confidential.
723-16-3.2 To the extent there may be information which a party believes requires extraordinary protection beyond that provided for in these rules the party shall submit a motion seeking such extraordinary protection. The motion shall state the grounds for seeking the relief, the specific relief requested, and advise all other parties of the request and the subject matter of the material at issue.
723-16-3.3 Challenge to Confidentiality. This Rule 3 establishes a procedure for the expeditious handling of information that a party claims is confidential. Compliance with this rule shall not be construed as an agreement or ruling regarding the confidentiality of any document. 723-16-3.3.1 A party seeking to challenge a claim of confidentiality shall first contact counsel for the providing party and attempt to resolve any differences by stipulation. 723-16-3.3.2 In the event the parties cannot agree as to the character of the information challenged, any party challenging a claim of confidentiality shall do so by advising all parties and the Commission, in writing, that it deems material non-confidential. This notice shall designate the material challenged in a manner that will specifically isolate the challenged material from other material claimed as confidential. 723-16-3.3.3 The party claiming confidentiality shall, within ten days of the notice referenced in Rule 3.3.2, file an appropriate pleading stating grounds upon which the challenged data is deemed to be confidential. The challenging party shall have ten days to respond to the pleading. In the event the claiming party fails to file an appropriate pleading within ten days, the Commission may enter an order that the challenged material may be used in the public record.
723-16-3.3.4 When the Commission receives a pleading asserting confidentiality by the claiming party regarding any items claimed as proprietary the Commission will enter an order resolving the issue.
723-16-3.3.5 In the event the Commission rules in response to a pleading that any information is not confidential and should be removed from the protective requirements of this rule or from the protection of the sealed record, the parties, to enable the claiming party to seek a stay or other relief, shall not disclose the information or use it in the public record for five business days.
723-16-3.3.6 In the event the Commission rules that information previously filed in a proceeding is not confidential, the filing party may, by motion submitted within five days of the ruling regarding confidentiality, request that it be permitted to remove the subject information from the record. Pending the ruling on the motion, all persons accorded access to such information shall continue to treat the information as confidential pursuant to this Rule 3. 723-16-3.3.7 In the absence of new information or a change in circumstances, as determined by the Director of the Commission in responding to a request for Commission records under §§ 24-72-201 et seq., C.R.S., a Commission ruling regarding confidentiality of specific material shall be a ruling on the confidentiality of such material for purposes of a request under §§ 24-72-201 et seq.
723-16-3.4 Procedure for Filing “Confidential” Information “Under Seal”. 723-16-3.4.1 A party submitting information claimed to be confidential to the Commission shall file, as part of the public record (i.e. not under seal), the required number of copies of its testimony and/or exhibits, according to the Commission's Rules of Practice and Procedure, 4 CCR 723-1, without including the information claimed to be confidential. The first page of each of these copies shall be stamped: “NOTICE of CONFIDENTIALITY: A PORTION OF THIS DOCUMENT HAS BEEN FILED UNDER SEAL.” A cover page on each copy shall include a list of the documents filed under seal and indicate the nature of the documents, so that if the documents are separated from the envelope it will still be clear that they are claimed to be confidential. Otherwise, parties shall make only general references to information claimed to be confidential in their testimony and exhibits.
723-16-3.4.2 In addition to the copies available for public inspection, the filing party shall file under seal an original and four copies of the information claimed to be confidential. All pages and copies of the information claimed to be confidential shall be clearly marked as “confidential” and shall be filed on microfilmable paper, pastel or white, not on dark colored paper such as goldenrod.
723-16-3.4.3 The five copies filed under seal shall be submitted in separate sealed envelopes numbered serially. The following information shall be written on the outside of each sealed envelope:
723-16-3.5 Segregation of Files. Confidential information, if filed with the Commission, will be sealed by the Director of the Commission, segregated in the files of the Commission, and withheld from inspection by any person not bound by the terms of this Rule 3. This treatment shall prevail unless the confidential information is released from the restrictions of this rule either through agreement of the parties and publication by the filing party, or ,after opportunity for comment, pursuant to order of the Commission or final order of a court having jurisdiction. 723-16-3.6 Delivery of Documentation. Where feasible, confidential information will be marked as such and delivered to counsel for the parties. Where the material is too voluminous to copy and deliver to counsel, the confidential information shall be made available for inspection and review by counsel and experts, as provided for in Rule 3.8, at a place and time mutually agreed on by the parties, or at the premises of the providing party, or as directed by the Commission. During the inspection, the parties may take notes on the material or request and receive copies of the documents. All notes taken and copies received of such documents shall be treated as constituting trade secret or confidential information in accordance with this Rule 3. 723-16-3.7 Use of Confidential Information and Persons Entitled to Review. All confidential information made available by a party shall be given solely to the Commission, its staff, and counsel for the parties, and, shall not be used or disclosed for purposes of business or competition, or for any other purpose other than for purposes of the proceeding in which the information is produced. With the exception of Staff, any disclosure of such information to a party's experts or advisors must be authorized by that party's counsel, and must be permitted solely for the purpose of the proceeding in which the information is produced. No expert or advisor may be an officer, director, or employee concerned with marketing or strategic planning of competitive products and services of the party or of any subsidiary or affiliate of the party. Information claimed to be confidential shall not be disclosed to individual members of a trade association to the extent these individuals are concerned with marketing or strategic planning of products or services competitive to the party producing such information. Any member of the Staff of the Commission may have access to any confidential information made available under the terms of this rule. Neither is Staff limited to using confidential information only in the specific proceeding in which it was obtained. However, except as provided in this Rule 3 or other Commission rule or order, members of Staff shall be subject to all other requirements of this rule. Upon motion approved by the Commission, the Colorado Office of Consumer Counsel may be permitted to use information subject to this Rule 3 in a proceeding or for a purpose unrelated to the specific proceeding in which the information was obtained.
723-16-3.8 Nondisclosure Agreement. No access to information under seal shall be allowed until the person seeking such access signs a nondisclosure agreement in the form that is attached and incorporated as Attachment 1. The Nondisclosure Agreement shall require the persons to whom disclosure is to be made to certify in writing that they have read this Rule 3 and agree to be bound by the terms of the Rule. The agreement shall contain the signatory's full name, business address, and employer, the name of the party with whom the signatory is associated, and, with the exception of Staff, the signature of that party's counsel. The agreement shall be delivered to counsel for the filing party and to the Commission at or before the time of review of the documents. All persons, including Staff, who are afforded access to any information under seal shall take all reasonable precautions to keep the confidential information secure in accordance with the purposes and intent of this Rule 3 723-16-3.9 Use in Pleading. Where reference to information subject to this Rule 3 is made in pleadings, briefs, arguments, or motions, it shall be by citation of title or exhibit number, or by some other description that will not disclose the information. Any further use of or substantive references to such information shall be placed in a separate section of the pleading or brief and submitted to the Commission under seal.
723-16-3.10 Appeal. Sealed portions of a record in any proceeding may be forwarded under seal to any court of competent jurisdiction on appeal in accordance with applicable rules and regulations. 723-16-3.11 Retention of Documents. At the conclusion of the proceedings, all documents and information subject to this Rule 3, except the original and copies required by Staff to carry out its regulatory responsibilities, shall be retrieved by the party or person producing them. If the producing party does not retrieve the documents from the Commission within seven days of notification by the Commission, the documents will be shredded or destroyed. The original shall be maintained by the Commission as part of its archival files. Staff shall take all reasonable precautions to maintain the confidentiality of information subject to this Rule 3. Upon motion approved by the Commission, the Colorado Office of Consumer Counsel may be permitted to retain information subject to this Rule 3 for a specified time following conclusion of the proceeding in which such information was obtained. All other parties shall, within seven days of the conclusion of the proceeding in which documents and information subject to this Rule 3 were produced, return such documents and information to the party producing them. 723-16-3.11.1 In the event Staff intends to use confidential information in a subsequent proceeding, it shall notify, in writing, the party who produced such information of such intended use. This notification shall be made at least ten days prior to submission of the subject information in the subsequent proceeding. Staff's use of confidential information in a subsequent proceeding shall be in accordance with the provisions of this Rule 3. 723-16-3.12 Reservation of Rights. Parties retain the right to question, challenge, and object to the admissibility of any and all data, information, studies, and other matters furnished under the terms of this Rule 3 on the grounds of relevancy or materiality. 723-16-3.13 Non-Waiver. Acceptance of information claimed to be confidential by any party shall in no way constitute a waiver of the rights of that party to contest any assertion or finding of trade secret, confidentiality, or privilege, to make a request under the Public Records Law, or to appeal any determination of the Commission.
723-16-3.14 Remedies. Any person or party to the proceeding retains all remedies existing at civil or criminal law for breach of this Rule 3, and compliance with these rules shall not be construed to be a waiver of those rights.
RULE (4 CCR) 723-16-4.. PROCEDURES RELATING TO CONFIDENTIAL INFORMATION SUBMITTED TO THE COMMISSION OUTSIDE OF A FORMAL DOCKET. 723-16-4.1 Procedures For Filing, Under Seal, Confidential Information Outside Of A Formal Docket. A person filing with the Commission, outside of a formal docket, documents or information claimed to be confidential, including information submitted in electronic form, shall utilize the following procedure:
723-16-4.1.1 Non-confidential portions. Non-confidential portions of a document may not be filed under seal. If a document contains both confidential and non-confidential information, the filing person shall specifically identify those portions of the subject document which are not confidential and shall submit to the Commission the required number of the document or report without including the information claimed to be confidential. The cover page of all copies of the material shall be stamped with the following: “NOTICE OF CONFIDENTIALITY. A PORTION OF THIS DOCUMENT HAS BEEN FILED UNDER SEAL” and shall include a list of the documents filed under seal. This list shall indicate the nature of the documents so that if the documents are separated from the envelope it will still be clear that they are claimed to be confidential. The non-confidential information will be available to the public immediately. The confidential information shall be filed under seal in accordance with the procedures set forth below. The Commission's acceptance of this information under seal shall not be construed to be an agreement by or ruling of the Commission that the subject information is, in fact, confidential. 723-16-4.1.2 Information Claimed To Be Confidential. The filing party shall file, under seal, the required number of copies of the subject confidential information in accordance with the rules of the Commission, if applicable. All pages and copies of the information claimed to be confidential shall be clearly marked as “confidential” and shall be filed on microfilmable paper, pastel or white, not on dark colored paper such as goldenrod. Each of the copies shall be submitted in a separate, sealed envelope numbered serially. The following information shall be written on the outside of each sealed envelope:
723-16-4.3 Retrieval of Information Under Seal. Upon notification from the Commission that the confidential information is no longer needed, the filing person shall make arrangements to retrieve the information. If the information is not retrieved by the filing party within seven (7) business days after notification, the Commission will dispose of the information. The Commission may retain the original of a filed document where necessary or required by law. 723-16-4.4 The Director of the Colorado Office of Consumer Counsel (“OCC”) may submit a written request for access to Commission records claimed to be confidential by the person providing the information. In such instances, the Director of the Commission shall forthwith notify the person who provided the subject information of the OCC's request. The person who provided the subject information may, within five business days of the Director's notification, submit a written objection to disclosure of the information to the OCC. The Director shall disclose the requested information to the OCC if he determines that the request is reasonably related to the OCC's statutory purpose as set forth in §§ 40-6.5-101 et seq.. However, if the person who provided the subject information notifies the Director, in writing submitted within the five-day period referenced in this rule, that judicial action will be commenced to prevent disclosure to the OCC, the Director shall refrain from disclosing the information to the OCC for an additional five business days to allow the person objecting to disclosure to commence judicial action to prevent such disclosure. 723-16-4.4.1 In the event the Director denies an OCC request for access to Commission records, the OCC may file a petition for access to such records with the Commission. Such petition shall be served upon the person who provided the subject information to the Commission.
723-16-4.4.2 Disclosure of information claimed to be confidential to the OCC shall be conditioned upon its compliance with the provisions of these rules, including the requirement in Rule
723-16-4.4.3 The OCC shall not utilize the procedure specified in this Rule 4.4 as a substitute for discovery in formal dockets before the Commission.
723-16-4.4.4 This Rule 4.4 shall not authorize the OCC to obtain access to Commission Staff workpapers or workproduct.
723-16-4.4.5 All information obtained under this rule shall be returned to the Commission within sixty days after the OCC was provided access to such information. However, the OCC may, upon written request approved by the Director or the Commission, retain the subject information for an additional specified period of time. The OCC shall serve a copy of the written request upon the person who provided the subject information to the Commission, and that person may submit an objection to the OCC's request. 723-16-4.4.6 The OCC's request for access to Commission records shall be considered in as expeditious a manner as possible given other duties of the Director and the Commission. The time periods set forth in §§ 24-72-201 et seq. shall not apply to requests under this Rule 4.4.
RULE (4 CCR) 723-16-5.. INFORMATION PRESUMED TO BE SUBJECT TO PUBLIC INSPECTION. 723-16-5.1 Information Presumed To Be Public. Pursuant to § 24-72-201, C.R.S., information filed with the Commission is public record and presumed to be open for inspection by any person at any reasonable time, subject to restrictions specifically provided by law. In particular, the following documents shall be presumed to be available for public inspection: 723-16-5.1.1 Annual reports required under Rule 25 of the Commission's Rules of Practice and Procedure, 4 CCR 723.
723-16-5.1.2 Rates, terms and conditions for regulated services. 723-16-5.1.3 Tariffs and price lists.
723-16-5.1.4 Advice letters but not necessarily information filed in support of advice letters such as supporting information required by the Rules Regulating Costing and Pricing (4 CCR 723-30).
723-16-5.1.5 Aggregate data regarding informal consumer complaint information. 723-16-5.1.6 All compliance filings that the Commission has ordered to be filed as public record. 723-16-5.1.7 Insurance filings of transportation carriers. 723-16-5.1.8 Unless otherwise specified by the Commission, performance reports required pursuant to either Commission rule or order to demonstrate compliance or lack of compliance with Commission rules or orders, including but not limited to, the Rules Regulating Telecommunications Service Providers and Telephone Utilities (4 CCR 723-2), Electric Utilities (4 CCR 723-3), Gas Utilities (4 CCR 723-4), and Rules Prescribing the Provision of Emergency 911 Services (4 CCR 723-29). Individual customer names, addresses and telephone numbers shall be presumed to be confidential. 723-16-5.1.9 To the extent ordered to be filed as public documents by the Commission, service quality performance reports required by the Commission from utilities regulated under an alternative form of regulation or performance based regulation , with the exception of individual customer names, addresses, and telephone numbers. 723-16-5.1.10 Safety inspection reports or information filed with the Commission or compiled by Commission staff pursuant to Commission order or rule, including but not limited to Rules Relating to Gas Pipeline Safety (4 CCR 723-11) and Safety Rules and Regulations for Common Carriers (4 CCR 723-15).
723-16-5.1.11 Any documents or information that have been previously made public. 723-16-5.2 Rebutting Presumption of Public Inspection of Information. A person claiming that any portion of one of the documents listed in Rule 5.1 is confidential, shall file the information claimed to be confidential in accordance with the procedures set forth in Rules 3 or 4. In addition, a person claiming that any portion of one of the above listed documents is confidential shall file a written justification for such a claim at the time of filing of the document. RULE (4 CCR) 723-16-6.. PROCEDURES CONCERNING REQUESTS FOR PUBLIC INSPECTION OF INFORMATION CLAIMED TO BE CONFIDENTIAL.
723-16-6.1 When any person makes a request to inspect Commission records which another person has claimed are confidential, the Director of the Commission shall determine whether the records are subject to public inspection pursuant to the provisions of §§ 24-72-201, et seq., C.R.S. (“Public Records Law”). The Director shall utilize procedures as are consistent with the provisions of the Public Records Law. In any event, the Director shall give timely notice of the request for inspection of public records to the person who submitted the documents or information subject to the request and who claims that the records are confidential. The Director shall also provide the person who submitted the information to the Commission an opportunity to submit oral or written comments regarding the public records request.
723-16-6.2 Upon making a determination as to whether the requested records are subject to public inspection, the Director shall forthwith notify the person objecting to disclosure and the person requesting public inspection of Commission records of that decision. 723-16-6.3 If the Director determines that the Commission's records are subject to public inspection, the Director, upon written request from the person objecting to such public disclosure, shall refrain from disclosure of the records for five (5) business days to allow the person objecting to such disclosure to commence judicial action to prevent public inspection of the subject records. RULE (4 CCR) 723-16-7.. CRITERIA FOR DETERMINING WHETHER INSPECTION SHOULD BE GRANTED FOR INFORMATION CLAIMED TO BE CONFIDENTIAL.
The Director's determination as to what level of public inspection should be permitted for specific public records submitted to the Commission shall be made on a case-by-case basis and shall be based on the Public Records Law, 24-72-201 et seq., C.R.S., and all other applicable law. 4 CCR 723-16 - ATTACHMENT 1 NONDISCLOSURE AGREEMENT RELATING TO CONFIDENTIAL DOCKETED INFORMATION BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO DOCKET NO. __________________________ _____________________________________ [DOCKET CAPTION] ______________________________________ NONDISCLOSURE AGREEMENT I hereby state that I have read the protective provisions relating to confidential information contained in Rules 4 CCR 723-__________________________ through __________________________ and agree to be bound by the terms of those protective provisions with respect to all evidence and information produced or arising in the course of this Docket No. __________________________. __________________________ NAME __________________________ Title __________________________ Employer or Firm __________________________ Business Address __________________________ Party in Case __________________________ Date __________________________ Signature __________________________ Signature of Counsel