4 Colo. Code Regs. § 723-1-1100

Current through Register Vol. 47, No. 11, June 10, 2024

Section 4 CCR 723-1-1100 - Confidentiality

(a) All documents, data, information, studies, computer programs, and other matters filed with the Commission in any form in a proceeding, or produced in response to any interrogatories or requests for information, subpoenas, depositions, or other modes of discovery, or produced in response to audit conducted by the Commission or Commission staff, and all notes taken or copies made thereof, that are claimed to be a trade secret or confidential in nature (herein referred to as "confidential information") shall be furnished under the terms of these standards of conduct. All persons afforded access to confidential information shall treat such information as confidential and shall neither use nor disclose such information except in accordance with these standards of conduct.

(b) In accordance with the Colorado Open Records Act, information filed with or provided to the Commission is public record and is presumed to be open for inspection by any person at any reasonable time, subject to restrictions specifically provided by law. In particular, subject to restrictions specifically provided by law, the following documents shall be presumed to be available for public inspection:

(I) annual reports required under the Commission's rules;

(II) rates, terms and conditions for regulated services;

(III) tariffs and price lists;

(IV) advice letters but not necessarily information filed in support of advice letters;

(V) aggregate data regarding informal consumer complaint information;

(VI) all compliance filings that the Commission has ordered to be filed as public record;

(VII) insurance filings of motor carriers;

(VIII) unless otherwise specified by the Commission, performance reports required pursuant to either Commission rule or decision to demonstrate compliance or lack of compliance with Commission rules or decisions. Individual customer names, addresses and telephone numbers shall be presumed to be confidential;

(IX) to the extent ordered to be filed as public documents by the Commission, service quality performance reports required by the Commission from utilities regulated under an alternative form of regulation or performance based regulation, with the exception of individual customer names, addresses, and telephone numbers;

(X) safety inspection reports or information filed with the Commission or compiled by Commission staff pursuant to Commission decision or rule; and

(XI) any document or information that has been previously made public.

(c) A claim of confidentiality constitutes a representation to the Commission that the claiming party has a reasonable and good faith belief that the subject document or information is not presumed to be open for inspection, and is, in fact, confidential under applicable law, including the Colorado Open Records Act. If a claim of confidentiality is made in violation of this paragraph (c), the Commission may impose an appropriate sanction upon the claiming party, including an order to pay to other parties the amount of reasonable expenses incurred because of the claim of confidentiality, including reasonable attorney's fees.

(d) The Commission's acceptance of information pursuant to a claim of confidentiality is not, and shall not be construed to be, an agreement or a determination by the Commission that the subject information is, in fact, confidential.

(e) At any time, the Commission may issue a decision on its own motion stating that a determination will be made whether information provided subject to a claim of confidentiality is confidential. In that event, the provisions of the Commission decision shall govern the procedure.

(f) Persons shall make only general references to information claimed to be confidential or highly confidential in their public testimony, including attachments, in other public filings, and in oral presentations other than those made on a confidential or highly confidential record.

(g) Until otherwise ordered by the Commission or the information subsequently becomes publicly available, a Commission determination regarding confidentiality of information shall apply in all future proceedings before the Commission as to the specific information for which confidentiality or highly confidential protection was asserted.

(I) In the event the Commission rules that any information previously filed or provided subject to a request for highly confidential protections should no longer be protected in accordance with such request, all persons afforded access to such information shall not disclose the information or use it in any manner for seven days. During this period, any person claiming highly confidential or confidential protections may seek a stay, request that it be permitted to remove the subject information from the record, or other relief. If a motion is filed to continue protection, pending the ruling on the motion, all persons afforded access to the information shall continue to treat the information as subject to the protection requested by the provider of the information.

(II) In the event the Commission rules that information previously filed or provided subject to a claim of confidentiality is not confidential and should be removed from the protective requirements of these standards of conduct, all persons afforded access shall not disclose such information or use it in the public record for seven days. During this period, any person claiming confidential protections may seek a stay, request that it be permitted to remove the subject information from the record, or other relief. If a motion is filed to continue protection, pending the ruling on the motion, all persons afforded access to such information shall continue to treat the information as confidential pursuant to these standards of conduct.

(III) In the absence of new information or a change in circumstances, as determined by the Director in responding to a request for Commission records under the Colorado Open Records Act, a Commission ruling regarding confidentiality of specific material shall be a ruling on the confidentiality of such material for purposes of a request under the Colorado Open Records Act.

(h) When filed with the Commission, or otherwise provided, confidential and highly confidential information will be sealed by the Director, designated as confidential or highly confidential, as applicable, in the E-Filings System, and withheld from inspection by any person not bound by the terms of these standards of conduct or Commission decision, as applicable. This treatment shall prevail unless the confidential or highly confidential information is released from the restrictions of these standards of conduct either through agreement of the interested persons and publication, or, after opportunity for comment, pursuant to a decision of the Commission or final order of a court having jurisdiction. Nothing in these standards of conduct shall require the Commission to provide information filed under seal to any person other than Commission staff and the UCA. Persons seeking access to information filed under seal must comply with the terms of these standards of conduct and must acquire the information filed under seal from the filer. Service of confidential or highly confidential information shall not be accomplished through the E-Filings System, except for service to the Commission's assigned trial staff and advisory staff. The UCA will provide written notification to a filer if it obtains access to the filer's confidential information from the Commission. Service of a signed non-disclosure agreement by the UCA upon the filer shall be deemed as such written notification.

(i) The Commission, Commission staff, Commission advisory counsel, and Commission staff counsel shall have access to all information filed under these standards of conduct by virtue of the annual nondisclosure agreement executed in accordance with this rule. Notwithstanding anything in these standards of conduct to the contrary, each member of the Commission, Commission counsel, and Commission staff need only sign one nondisclosure agreement annually. The annual nondisclosure agreement that each Commissioner, Commission counsel, and Commission staff member executes shall include a provision that requires the individual to maintain and to treat information to which the Commission has granted highly confidential protection pursuant to paragraph 1101(b) in accordance with the decision granting highly confidential protection. Signing such an annual nondisclosure agreement shall permit a Commissioner, Commission counsel, and Commission staff members to have access to all confidential information filed with or provided to the Commission and to have access to all information to which the Commission has granted highly confidential protection pursuant to paragraph 1101(b). The Commission shall maintain in its files the annual nondisclosure agreements and shall make such agreements available for public inspection.

(j) All persons afforded access to any information filed subject to a claim of confidentiality shall take all reasonable precautions to keep the confidential information secure in accordance with the purpose and intent of these standards of conduct. All persons, including Commission staff, who are afforded access to information to which the Commission has granted highly confidential protection shall maintain and shall treat that information in accordance with the protections for confidential information specified in these standards of conduct and the decision granting highly confidential protection.

(k) Parties to a proceeding retain the right to question, challenge, and object to the admissibility of any and all data, information, studies, and other matters furnished under the terms of these standards of conduct on the grounds of relevancy or materiality.

(l) Acceptance of information claimed to be confidential or highly confidential by any party shall in no way constitute a waiver of the rights of that party to contest any assertion or finding of trade secret, confidentiality, or privilege; to make a request under the Colorado Open Records Act; or to appeal any determination of the Commission.

(m) Any person or party to the proceeding retains all remedies existing at civil or criminal law for breach of these standards of conduct, and compliance with these standards of conduct shall not be construed to be a waiver of those rights.

(n) The UCA may submit a written request for access to Commission records containing information claimed to be confidential by the person providing the information. In such instances, the Director shall forthwith notify the person who provided the subject information of the UCA's request. The person who provided the subject information may, within seven days of the Director's notification, submit a written objection to disclosure of the information to the UCA. The Director shall disclose the requested information to the UCA if the Director determines that the request is reasonably related to the UCA's statutory purpose as set forth in §§ 40-6.5-101, et seq. However, if the person who provided the subject information notifies the Director, in writing submitted within the seven-day period referenced in this paragraph, that judicial action will be commenced to prevent disclosure to the UCA, the Director shall not disclose the information to the UCA for an additional seven days. During this additional seven-day period, the person objecting to disclosure may commence judicial action to prevent such disclosure or may take other appropriate action.

(I) In the event the Director denies an UCA request for access to Commission records, the UCA may file a petition for access to such records with the Commission. The UCA shall serve such a petition on the person who provided the subject information to the Commission.

(II) Disclosure to the UCA of information claimed to be confidential shall be conditioned upon the UCA's compliance with the provisions of these rules, including the requirement in paragraph (j) of rule 1100 that it take all reasonable precautions to keep the confidential information secure. Employees and representatives of the UCA shall sign a nondisclosure agreement in substantially the same form as required by paragraph (j) of rule 1101, and shall deliver such agreement to the Director and the provider of the information claimed to be confidential, prior to review of the information claimed to be confidential. Employees and representatives of the UCA shall not disclose information obtained under these standards of conduct absent a ruling by the Director, the Commission or a court of appropriate jurisdiction authorizing such disclosure.

(III) The UCA shall not use the procedure specified in this paragraph (n) as a substitute for discovery in Commission proceedings.

(IV) This paragraph (n) shall not authorize the UCA to obtain access to Commission staff work papers or work product.

(V) All information obtained under this rule shall be returned to the Commission within sixty days after the UCA was provided access to such information. However, upon written request approved by the Director or the Commission, the UCA may retain the subject information for an additional specified period of time. The UCA shall serve a copy of the written request for additional time upon the person who provided the subject information to the Commission, and that person may submit an objection to the UCA's request.

(VI) An UCA request for access to Commission records containing confidential information shall be considered in as expeditious a manner as possible given other duties of the Director and the Commission. The time periods set forth in the Colorado Open Records Act shall not apply to requests under this paragraph (n).

4 CCR 723-1-1100

38 CR 02, January 25, 2015, effective 2/14/2015

38 CR 20, October 25, 2015, effective 11/14/2015

43 CR 13, July 10, 2020, effective 7/30/2020

45 CR 07, April 10, 2022, effective 4/30/2022