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
I. PROCEDURAL HISTORY
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.
II. COMMISSION ANALYSIS
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