4 Colo. Code Regs. § 723-1-1101

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

Section 4 CCR 723-1-1101 - Procedures Relating to Confidential Information Filed with the Commission in a Proceeding

(a) Procedure for filing information claimed to be confidential or highly confidential in a proceeding.

(I) A party submitting to the Commission information claimed to be confidential or highly confidential shall file, as part of the public record (i.e., not under seal), the required number of copies of its filing, according to these rules and without including the information claimed to be confidential or highly confidential. The first page of each of these copies shall be labeled: "NOTICE OF CONFIDENTIALITY: A PORTION OF THIS DOCUMENT HAS BEEN FILED UNDER SEAL." The first page shall list each document filed under seal, shall list each page number of each document on which confidential or highly confidential material is found, and shall indicate the nature of the documents that are filed under seal. Failure to make a public filing that excludes information claimed to be confidential or highly confidential along with the information claimed to be confidential or highly confidential will result in administrative rejection of the filing by Commission staff.

(II) Unless filed through the E-Filings System, in addition to the copies available for public inspection, the person filing shall file under seal an original and three copies of the pages on which the information is claimed to be confidential or highly confidential. All pages and copies of the information claimed to be confidential or highly confidential shall be clearly marked as "confidential" or "highly confidential" as applicable and shall be filed on lightly colored paper. Each page of the document containing information claimed to be confidential or highly confidential shall be clearly marked so that, should the pages of the document be separated from the envelope, it will be clear that the information on the page of the document is claimed to be confidential or highly confidential.

(III) Unless filed through the E-Filings System, the original and three copies of the pages containing confidential or highly confidential information shall be filed under seal in separate, sealed envelopes numbered serially. The envelopes shall be no smaller than 9" by 12" and no larger than 10" by 13". The following information shall be written on the outside of each sealed envelope:

(A) the caption and proceeding number of the associated proceeding and the notation "CONFIDENTIAL-- SUBMITTED IN PROCEEDING NO. ________ " or "HIGHLY CONFIDENTIAL- SUBMITTED IN PROCEEDING NO. ___________ ", as applicable;

(B) the name of the filing party;

(C) the date of filing;

(D) a description of the information (e.g., testimony, including attachments of ______ (name of witness), statement of position, motion);

(E) the filing party's statement as to whether it prefers to retrieve the information following conclusion of Commission proceedings and any related court actions or it prefers to have the Commission and/or parties served destroy the information by shredding following conclusion of Commission proceedings and any related court actions; and

(F) if the party chooses to retrieve the information in accordance with the statement contained in subparagraph (III)(E), the name and phone number of the person who will retrieve such information.

(b) If a person believes that information requires extraordinary protection beyond that otherwise provided for information furnished subject to a claim of confidentiality, then the person must file a motion requesting highly confidential protection. The motion:

(I) shall include a detailed description and/or representative sample of the information for which highly confidential protection is sought;

(II) shall state the specific relief requested and the grounds for seeking the relief;

(III) shall advise all other parties of the request and the subject matter of the information at issue;

(IV) shall include a showing that the information for which highly confidential protection is sought is highly confidential; that the protection afforded by the Commission's rules for furnishing confidential information provides insufficient protection for the highly confidential information; and that, if adopted, the highly confidential protections proposed by the movant will afford sufficient protection for the highly confidential information;

(V) shall be accompanied by a specific form of nondisclosure agreement requested;

(VI) shall be accompanied by an affidavit containing the names of all persons with access to the information and the period of time for which the information must remain subject to highly confidential protection, if known; and

(VII) shall include an exhibit, filed in accordance with the procedures established in paragraph (a), containing the information for which highly confidential protection is requested. Alternatively, the movant may show why providing the subject information would be overly burdensome, impractical, or too sensitive for disclosure.

(c) If a person believes that information presumed to be open for public inspection as contained in paragraph (n) of rule 1100 should not be open for public inspections, then the person may file a motion requesting highly confidential protection in accordance with paragraph (b) above. The appropriate treatment for such information must be determined by the Commission. A claim of confidentiality does not overcome the presumption of public availability.

(d) The person seeking highly confidential protection for information shall comply with paragraph 1204(a) in filing the motion. Prior to deciding the motion and as it deems necessary, the Commission may enter a decision requiring the filing of additional information, including the filing of a complete version of the information for which highly confidential protection is sought. The person seeking highly confidential protection for information shall bear the burden of proof to establish the need for highly confidential protection. The Commission will consider in camera the motion and, as applicable, the description of the information, the representative sample of the information, or the complete information. After considering the motion and the circumstances, the Commission may enter a decision granting the motion and ordering the highly confidential protection which the Commission, in the exercise of its discretion, deems appropriate; may enter a decision denying the motion; or may enter any other appropriate decision.

(e) Information which is subject to highly confidential protection and that is provided in response to discovery or in response to Commission staff audit shall not be filed with the Commission. Unless the Commission orders otherwise, a complete version of the document that contains the information which is subject to highly confidential protection shall be filed with the Commission as soon as any one of the following applies:

(I) the information is used to support a motion;

(II) the information is filed as an attachment included in prefiled testimony;

(III) the information is prefiled as an exhibit to be offered at hearing; or

(IV) the information is offered as an exhibit at hearing.

(f) This rule establishes the procedure for the expeditious handling of a challenge to the claim by a person that information is confidential. Compliance with this rule shall not be construed as an agreement or ruling regarding the confidentiality of any document.

(I) A person seeking to challenge a claim of confidentiality shall first contact counsel for the providing person and attempt to resolve any differences by stipulation.

(II) In the event the parties cannot agree as to the character of the information challenged, any person challenging a claim of confidentiality shall do so by advising all parties and the Commission, in writing, that it deems information non-confidential. This notice shall designate the information challenged in a manner that specifically isolates the challenged information from other information claimed as confidential.

(III) The person claiming confidentiality shall, within ten days of the notice required by subparagraph (II) of this paragraph, file an appropriate pleading stating grounds upon which the challenged information is claimed to be confidential. The challenging person shall have ten days to respond to the pleading. In the event the claiming person fails to file the required pleading stating grounds for treating the challenged information as confidential within ten days, the Commission may enter a decision that the challenged information may be included in the public record or subject to modified protections.

(g) Where feasible, confidential information will be marked as such and delivered to counsel for the parties. Where the material is too voluminous to copy and deliver to counsel, the confidential information shall be made available for inspection and review by counsel and experts, as provided for in paragraphs (h) and (i) of this rule, at a place and time mutually agreed on by the parties, or at the premises of the providing party, or as directed by the Commission. During the inspection, unless the Commission orders otherwise, the parties may take notes about the information or may request and receive copies of the documents, or both. All notes taken and copies received of such documents shall be treated as constituting confidential information in accordance with these standards of conduct.

(h) All confidential information made available by a party shall be given solely to the Commission, Commission staff, and counsel for the parties, and, shall not be used or disclosed for purposes of business or competition, or for any purpose other than for purposes of the proceeding in which the information is produced. With the exception of Commission staff, any disclosure of such information to a party's experts or advisors must be authorized by that party's counsel, and must be permitted solely for the purpose of the proceeding in which the information is produced. No expert or advisor may be an officer, director, or employee concerned with marketing or strategic planning of competitive products and services of the party or of any subsidiary or affiliate of the party. Information claimed to be confidential shall not be disclosed to individual members of a trade association to the extent these individuals are concerned with marketing or strategic planning of products or services competitive to the party producing such information. Any member of the Commission staff may have access to any confidential information made available under the terms of these standards of conduct. Commission staff is not limited to using confidential information only in the specific proceeding in which it was obtained. However, except as provided in these standards of conduct or other Commission rule or decision, Commission staff shall be subject to all other requirements of standards of conduct. Upon motion approved by the Commission, the UCA may be permitted to use information subject to this rule in a proceeding or for a purpose unrelated to the specific proceeding in which the information was obtained.

(i) No person shall have access to information under seal until the person, who is either a party or an authorized agent of a party and who is seeking such access, signs a nondisclosure agreement on a form approved by the Commission, serves the nondisclosure agreement on the party filing the confidential information, and files the nondisclosure agreement with the Commission. The nondisclosure agreement form shall require the person to whom disclosure is to be made (the signatory) to certify in writing that the signatory has read the protective provisions contained in rules 1100 - 1103 and agrees to be bound by the terms of those provisions. The agreement shall contain (1) the caption and number of the associated proceeding; (2) the signatory's full name, title, employer or firm, and business address; (3) the name of the party with whom the signatory is associated; (4) the signatory's signature and the date of execution of the nondisclosure agreement; and (5) the signature of the associated party's counsel of record for the proceeding. The agreement shall be delivered to counsel for the filing person and shall be filed with the Commission at or before the time of review of the documents.

(j) Where reference to information subject to this rule is made in pleadings, it shall be by citation of title or exhibit number, or by some other description that will not disclose the information. Any further use of or substantive references to such information shall be placed in a separate section of the pleading and shall be submitted to the Commission under seal in accordance with these rules.

(k) Sealed portions of a record in any proceeding may be forwarded under seal to any court of competent jurisdiction on appeal in accordance with applicable rules and regulations.

(l) Retention of documents.

(I) At the conclusion of the proceedings, all documents and information subject to this rule, except the original and copies retained by Commission staff shall be retrieved by the party or person producing them unless the filer states on the outside of each sealed envelope served that its preference is to have the Commission and/or parties served destroy the information following the conclusion of Commission proceedings and any related court actions. If the producing party does not retrieve the documents from the Commission within seven days of notification by the Commission, the documents will be shredded or destroyed. The original shall be maintained by the Commission as part of its archival files. Commission staff shall take all reasonable precautions to maintain the confidentiality of information subject to these standards of conduct.

(II) Upon motion approved by the Commission, the UCA may be permitted to retain information subject to this rule for a specified time following conclusion of the proceeding in which such information was obtained. All other parties shall, within seven days of the conclusion of the proceeding in which documents and information subject to these standards of conduct were produced, return such documents and information to the person providing the information.

(III) In the event Commission staff intends to use confidential or highly confidential information in a subsequent proceeding, it shall notify, in writing, the person who produced such information of such intended use. This notification shall be made at least ten days prior to submission of the subject information in the subsequent proceeding. Commission staff's use of confidential or highly confidential information in a subsequent proceeding shall be in accordance with the provisions of these standards of conduct.

(IV) Commission staff and UCA shall develop and maintain internal procedures to protect from disclosure any confidential or highly confidential information permitted to be retained pursuant to these standards of conduct or order of the Commission.

4 CCR 723-1-1101

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