FERC Reveals All: Overrules Confidentiality Claims, FOIA Exemptions, Trade Secrets, Individual Rights

As the Federal Energy Regulatory Commission prepared to act on its investigation into California's charges of gas and electricity market manipulation, it ruled Friday it would release most of the company records submitted in the case on March 26 -- the date scheduled for a decision -- or later. The Commission's issuance of the order Friday gives the companies time to press for injunctions against the release of confidential information.

The Commission followed up on its order in early March which had said it would release the documents, but had not set a date. The documents are those submitted in its investigation into California's charges of gas and electricity price manipulation in the West, including Dockets PA02-2, EL00-95-48, EL00-98-42 and EL01-10-007. It includes filings by more than 200 jurisdictional and non-jurisdictional entities. The Commission has reserved only those documents which it received from other federal agencies because it might jeopardize their investigations (see Daily GPI, March 7).

In issuing its release order Friday the Commission noted the documents include information submitted of one kind or another "by every natural gas and electric jurisdictional company involved in the western markets....The records in these dockets are immense. In PA02-02 alone, the electronic records comprise over 2 terabytes of data, which would fill 1.5 million floppy diskettes or 3,341 compact diskettes."

While it maintained confidentiality of the documents while it conducted its investigation, FERC will release them to "enable the public to understand better the evidentiary record on which the Commission's decisions in those proceedings are grounded.

Friday's order noted the Commission had received various requests not to release commercially sensitive information, particularly regarding ongoing contracts. In particular UBS AG said it would suffer competitive harm if records it turned over to the Commission, which it obtained from Enron, including proprietary trading software source codes and system diagrams, proprietary trading/pricing models and certain databases compiled by Enron, were made available to its competitors. UBS AG claimed exemption from release because these were trade secrets.

Citing the public interest, FERC said it is not bound by those rules, nor by exemptions allowed under the Freedom of Information Act (FOIA) for voluntarily submitted information. It also declined to honor attorney-client privilege or duplicate records submitted to it as a courtesy when a company was turning over records to another agency.

The Commission also declined to withhold personnel records and audio tapes, which in addition to recording traders' business conversations, also revealed personal information. "The fact that in the course of those business transactions certain employees may have engaged in personal conversations is unfortunate, but not sufficient to override the public's need here to get the full record on a timely basis." FERC said honoring individuals' right to privacy was infeasible since it would take too long to eliminate the personal information from the records.

"The Commission acknowledges that disclosure of voluntarily submitted confidential information here might jeopardize its ability in the future to get information on a cooperative basis and could stymie future investigations if companies fear that the Commission might make broad disclosures of information....The Commission is confident that companies will recognize that the Commission must balance the public interest with the rights of the companies supplying confidential information, and that the companies will continue to voluntarily provide information to the Commission. On the other hand, if they do not, the Commission can use its subpoena power to obtain needed information."

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