DR 97-186
New Hampshire Electric Cooperative, Inc.
Petition for Approval of Purchased Power Agreement
Order Granting Confidential Treatment
O R D E R N O. 23,132
February 1, 1999
On September 9, 1997, the New Hampshire Electric
Cooperative (NHEC) filed with the New Hampshire Public Utilities
Commission (Commission) a petition for Approval of a Purchase
Power Contract (Contract) between NHEC and Waste Management of
New Hampshire, Inc. (WMNH). At that time, NHEC also filed a
Motion for Confidential Treatment order covering the terms of the
Contract.
The Contract provides for the purchase of 4.4 MW of
baseload capacity produced at WMNH's landfill gas recovery
facility located in Rochester, New Hampshire. The Contract was
negotiated pursuant to the procedures approved by the Commission
in Re New Hampshire Electric Cooperative, Inc.,80 NH PUC 489
(1995) for purchases of power from Qualifying Facilities (QF)
under the federal Public Utilities Regulatory Policy Act of 1978
(PURPA) and RSA 362-A (LEEPA). The procedure adopted by the
Commission allowed NHEC to issue requests for proposals (RFP) for
the purpose of soliciting competitive bids from QFs, thereby
meeting NHEC's PURPA and LEEPA obligations to purchase QF power
at its avoided cost.
NHEC avers that the Contract contains sensitive
confidential, commercial and financial information that would
cause harm to NHEC, its members, and WMNH if it were released to
the public. NHEC asserts that revelation of this information to
persons who might use such information in any future RFPs issued
by NHEC would frustrate NHEC's ability to obtain the least cost
and most beneficial terms for its members. NHEC also asserts
that public disclosure of the contract would reveal sensitive
cost information concerning WMNH's Rochester facility and its
operation. Thus, NHEC asserted the information is exempt from
disclosure under RSA 91-A:5,IV and N.H. Admin. Rules, Puc 204.06.
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 information contained in
the Contract 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 that NHEC has demonstrated that the public's interest in
disclosure is outweighed by the potential competitive harm to
NHEC, its members and WMNH. Thus, the motion will be granted
subject to further review upon any request by the public to
review the material pursuant to RSA 91-A.
Based upon the foregoing, it is hereby
ORDERED, that the New Hampshire Electric Cooperative,
Inc.'s Motion for Confidential Treatment is GRANTED; and it is
FURTHER ORDERED, that this Protective Order is subject
to the reconsideration under RSA 91-A, on motion of the
Commission, on motion of Staff, on motion any party or on the
motion of any other member of the public, at which time the New
Hampshire Electric Cooperative, Inc. and Waste Management of New
Hampshire, Inc. shall bear the burden of maintaining the
confidential treatment granted herein.
By order of the Public Utilities Commission of New
Hampshire this first day of February, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary