DR 98-174
         Public Service Company of New Hampshire, inc.
         1999 Conservation and Load Management Program
Order Denying Motion For Confidential Treatment of Data Response
                    O R D E R   N O.  23,090
                       December 21, 1998
       On October 1, 1998, Public Service Company of New
     Hampshire (PSNH) filed with the New Hampshire Public Utilities
     Commission (Commission) its 1999 Conservation and Load Management
     (C&LM) Filing in accordance with Commission Order No. 22,905
     (April 28, 1998).  The petition sought approval of a C&LM budget
     of $3,206,196, of which $200,000 represents recovery of Lost
     Fixed Costs.   
       By Order of Notice dated October 9, 1998, the
     Commission scheduled a prehearing conference for November 2,
     1998.  Following the prehearing conference the Commission issued
     Order No. 23,066 (November 13, 1998) granting motions to
     intervene and establishing a procedural schedule to govern the
     Commission's investigation into this matter.
       As part of its investigation, Commission Staff
     requested that PSNH provide it with information relative to the
     SmartLiving Catalog (Catalog).  The Catalog provides energy
     efficient products to PSNH customers at subsidized prices.  Staff
     requested that PSNH provide for each product the amount of the
     rebate or the amount of the subsidy. 
       Pursuant to N.H. Admin. Rule, Puc 204.06 (b) and (c),
     PSNH supplied the information but requested that the Commission
     grant protective treatment to the information pursuant to RSA
     91-A:5, IV and N.H. Admin. Rules, Puc 204.08 to prevent its
     general dissemination to the public.  PSNH explained that the
     items in the Catalog are selected through a bidding process and
     the information sought by Staff would reveal the winning price of
     the winning bid.  Thus, PSNH averred that the response to Staff's
     request contained confidential, commercial or financial
     information which, if revealed, would "harm the catalog
     fulfillment vendor in that it will provide the vendor's
     competitors with confidential information that will result in an
     unfair competitive advantage generally and in the current bid
     process, and . . . will harm PSNH and its customers by
     potentially adversely impacting the catalog . . . bidding process
     . . . ."   Motion at  3.      
       The motion indicates PSNH contacted or attempted to
     contact all of the parties to the proceeding and Staff.  None of
     the parties contacted objected to the Motion and no other party
     filed an objection to the Motion.
       The issue presented is whether the Commission should
     provide confidential treatment to the level of rebate funded by
     ratepayers for the subsidized energy efficiency products in the
     Catalog.  Based on the analysis below, we conclude the public's
     interest in disclosure of this information outweighs any negative
     consequence resulting from disclosure.
       Part I, Article 8 of the New Hampshire Constitution
     provides in relevant part that,
         [g]overnment . . . should be open,
       accessible, accountable and responsive.  To
       that end, the public's right of access to
       governmental proceedings and records shall
       not be unreasonably restricted.
     The Legislature has codified this principle at RSA 91-A, the
     so-called Right-to-Know Law.  Pursuant to RSA 91-A, all
     government meetings and records shall be open and available to
     the public unless they fall within a narrow set of exemptions set
     forth at RSA 91-A:5.  See generally, Union Leader Corporation v.
     New Hampshire Housing Authority, 142 N.H. 540 (1997). 
       RSA 91-A:5,IV provides that records pertaining to 
     "confidential, commercial, or financial information" are exempt
     from the general provisions of the Right-to-Know Law that would
     otherwise subject such information to disclosure.  We believe the
     subject cost information falls within the definition of
     commercial or financial information addressed by RSA 91-A:5, IV. 
       The New Hampshire Supreme Court has held, however, that
     information that falls into one of these categories is not, per
     se, exempt from disclosure.  Union Leader Corp., 142 N.H. 540,
     553.  Rather, the Court has held that the negative impact of
     disclosure of the   "commercial or financial interest must be
     balanced against the public's interest in disclosure."  Id.; 
     Accord, Re New England Telephone Company (Auditel), 80 NHPUC 437
     (1995); Re Bell Atlantic, Order No. 22,851 (February 17, 1998);
     Re EnergyNorth Natural Gas, Inc., Order No. 22,859 (February 24,
     1998).  Applying this balancing test to the case at hand, we
     conclude the public's interest in disclosure outweighs any
     potential harm to PSNH or its suppliers.       
       The public, or the PSNH ratepayers, have a substantial
     interest in knowing the amount of subsidy they are providing
     toward the price of the products offered in the Catalog through
     their electric rates.  These are ratepayers' funds and ratepayers
     have a right to know how and where the funds are being spent.  
       Although PSNH has alleged that the revelation of this
     information might potentially lead vendors or bidders not to
     participate in this energy efficiency program, ultimately leading
     to increased costs to ratepayers, we are not convinced that this
     is the case.  That proposition would only hold true if vendors of
     these products chose not to participate in these programs.  We
     believe these programs provide manufacturers and distributors an
     excellent and singular vehicle for market recognition and
     penetration that would outweigh any such potential.  Moreover,
     even if the number of bidders were reduced because of disclosure
     we believe the public's right to this information outweighs any
     such effect. 
       Based upon the foregoing, it is hereby
       ORDERED, that Public Service Company of New Hampshire,
     Inc.'s Motion for Protective Order is DENIED; and it is
       FURTHER ORDERED, that pursuant to PUC 204.05(c)(2) the
     information shall be protected from disclosure until all rights
     of appeal are exhausted or waived.
       By order of the Public Utilities Commission of New
     Hampshire this twenty-first day of December, 1998.
           Douglas L. Patch       Susan S. Geiger     Nancy Brockway
               Chairman           Commissioner          Commissioner
     Attested by:
     Thomas B. Getz
     Executive Director and Secretary