150.1 Any materials submitted by a party, which it claims are confidential or proprietary, shall be filed under seal and shall not be used except in connection with the proceeding in which the material is filed.

150.2 All submissions filed under seal shall be made available only to parties and persons who have signed an appropriate confidentiality or proprietary agreement with the party claiming its information is proprietary. Information obtained pursuant to the execution of a confidentiality/proprietary agreement with the party claiming its information is proprietary shall be held solely for use in or in preparation of briefs, comments, documents and exhibits, data responses, cross-examination, other pleadings, petitions for reconsideration or appeals in the regulatory proceeding in which the information was originally obtained.

150.3 If any party intends to use or actually uses information in briefs, comments, testimony, exhibits, data responses, cross-examination, or other documents to be filed in a case which information is obtained pursuant to a confidentiality or proprietary agreement, the following shall apply:

(a) The brief, comments, testimony, exhibits, data responses, or other documents containing the alleged proprietary information shall be sealed and delivered to the Commission Secretary by that party and to those other parties which have signed an appropriate confidentiality or proprietary agreement. An original and twelve (12) copies shall be filed under seal with the Commission Secretary;

(b) The pages containing allegedly proprietary information shall be clearly marked and the cover of the documents shall indicate that proprietary information is contained inside;

(c) Parties who have not signed an appropriate confidentiality or proprietary agreement shall receive the briefs, comments, testimony, exhibits, data responses, or other documents with the alleged proprietary information omitted and the following notice inserted: "This portion contains information which alleges to be proprietary. Please contact for an appropriate proprietary agreement or file with the Commission for a Proprietary Information Determination. Parties may seek a Commission ruling on contention at any time in this proceeding." An original and twenty-five (25) copies of the document shall be filed with the Commission and served upon all parties;

(d) Cross-examination by any party, involving that information which another party alleges to be proprietary, shall be conducted during proceedings which shall be closed to all those who have not signed an appropriate proprietary or confidentiality agreement; Provided, that there has been no prior Commission determination that such information is not proprietary. The transcript of the proceeding shall be kept under seal; and

(e) If any party challenges the appropriateness of a claim that information is proprietary or confidential, the procedures set forth under §150.5 of this chapter shall apply.

150.4 If a party, who has not signed a proprietary agreement with the party claiming its information is proprietary, desires to obtain proprietary information from a party that has the information, either through obtaining data requests, during the cross-examination hearing, or through obtaining sealed briefs, comments, testimony or exhibits, the requesting party shall do the following:

(a) Contact the party claiming its information is proprietary for an appropriate proprietary agreement; or

(b) File with the Commission for a Proprietary Information Determination under §150.5.

150.5 If at any time a party challenges a claim of the party who asserts that its information is proprietary, the following procedures shall apply:

1. (a) The party challenging the claim that information is proprietary shall file with the Commission for a proprietary Information Determination, which shall consist of a request for a ruling on whether the particular information is proprietary (hereafter referred to as 'Proprietary Information Determination Request'). Copies of the Proprietary Information Determination Request shall be hand-delivered to the Commission, the party claiming that its information is proprietary, and signatories to the proprietary agreement. Parties to the proceeding who have not signed the proprietary agreement shall only receive notice that a Proprietary Information Determination Request has been filed rather than a copy of the filing;
2. (b) When any Proprietary Information Determination Request has been filed, the party claiming that its information is proprietary shall deliver under seal all of the relevant documents to the Commission Secretary for an in camera inspection by the Commission and its authorized agents;
3. (c) When a Proprietary Information Determination Request has been filed, the party claiming that its information is proprietary shall deliver to the Commission the relevant proprietary agreements signed by each party permitted access to the alleged proprietary information;
4. (d) The party claiming that its information is proprietary, without order or action from the Commission, shall file an initial brief stating in detail the basis of its proprietary claim within five (5) days after the Proprietary Information Determination Request is filed. Within five (5) days thereafter, the party that challenged the proprietary claim shall file a detailed brief in response to the initial brief of the party claiming that its information is proprietary. Within three (3) days after that filing, the party claiming that its information is proprietary may file a reply brief. If either the initial or reply brief of the party claiming that its information is proprietary or the brief of the party challenging the claim uses information that allegedly is proprietary, those pleadings shall be filed under seal;
5. (e) The burden of ultimately persuading the Commission that the subject information is proprietary is upon the party claiming that its information is proprietary; and
6. (f) A party shall not make public, information regarding the disputed proprietary information until a ruling is received from the Commission. Following the ruling, the information shall be made available only pursuant to the Commission's order; Provided, that an application for reconsideration of the Commission's order filed by the party claiming that its information is proprietary will act as a stay of such order pending reconsideration.

150.6 If an appeal is taken from a final Commission order in the regulatory proceeding, all information under seal at that time shall remain until the District of Columbia Court of Appeals issues an order on the appeal.

150.7 The parties retain the right to object to the admissibility of any specific proprietary information on any proper grounds, including relevancy or materiality to the proceeding.

150.8 When the Commission's order in the regulatory proceeding is final and no longer subject to appeal, the sealed portion of the Commission's record shall be retained under seal by the Commission. All parties and persons having material furnished pursuant to a proprietary

agreement (including, but not limited to, notes or records made from such material) or copies of documents kept under seal by the Commission during the course of such proceeding (including, but not limited to, briefs, comments, testimony, exhibits, transcripts, and data responses), upon request by the party claiming that its information is proprietary, shall deliver all such material to that party.

150.9 Access to the documents kept under seal by the Commission shall be limited to the Commission, its assistants and agents, and those parties who have executed a proprietary agreement.

150.10 All persons or parties executing a proprietary agreement shall be responsible for the protection of the confidentiality of any proprietary information in their control.

SOURCE: Final Rulemaking published at 39 DCR 5117, 5125 (July 10, 1992).