170 Ind. Admin. Code 1-1.1-4

Current through October 2, 2024

Section 170 IAC 1-1.1-4 - Confidential or privileged information

Authority: IC 8-1-1-3; IC 8-1-2-47

Affected: IC 5-14-3; IC 8-1-1-8; IC 8-1-2-29

Sec. 4.

(a) If a party desires to file with or submit to the commission a writing, paper, report, study, map, photograph, book, card, tape recording, or other material that the party believes is confidential in accordance with IC 8-1-2-29 and IC 5-14-3, the party shall do the following:

(1) Apply for a finding by the commission, on or as soon as practicable before the date (if any) the information is required to be filed, that the information is confidential as follows:

(A) In docketed proceedings, an application shall be done through a motion in accordance with section 12 of this rule.

(B) In an instance where confidential treatment is sought by the party and the material is not part of a docketed proceeding, an application shall be done through a petition in accordance with section 9 of this rule.

(C) This subsection applies if a filing party wishes to submit confidential information provided and considered confidential by another party (providing party), and the providing party wishes to submit its own supporting motion for confidential treatment. In this circumstance, the providing party must submit its supporting motion for confidential treatment within five (5) business days after the filing party's submission, or submission of the redacted filing, whichever occurs first. The providing party's motion should indicate whether the other parties to the proceeding object to preliminary confidential treatment of the information.

(2) If the motion is part of a proceeding, the motion should, to the extent the filer can reasonably determine, indicate whether parties to the proceeding object to preliminary confidential treatment of the information.

(b) For motions filed under subsection (a)(1)(A), the written application for a confidentiality finding must be served on the parties of record. After five (5) days, or earlier if the parties have indicated they shall not object, or as ordered by the presiding officers, following an application by a party under this subsection, the commission may take one (1) or more of the following actions:

(1) Find information to be confidential, in whole or in part.

(2) Find information not to be confidential, in whole or in part.

(3) Issue a protective order or docket entry covering the information.

(4) Find that information found not to be confidential should be filed in accordance with this rule.

(c) For petitions filed under subsection (a)(1)(B), the following applies:

(1) If no objections are filed within thirty (30) days and the presiding officer does not otherwise determine a need for an evidentiary hearing, the commission shall proceed to issue an order.

(2) If objections are filed within thirty (30) days or the presiding officer determines a need for an evidentiary hearing, the presiding officer shall convene a prehearing conference and establish a procedural schedule.

(3) After review of objections and matters raised in an evidentiary hearing, as applicable, the commission may take one (1) or more of the following actions:

(A) Find information to be confidential, in whole or in part.

(B) Find information not to be confidential, in whole or in part.

(C) Issue a protective order covering the information.

(D) Find that information found not to be confidential should be filed in accordance with this rule.

(d) The application required by subsection (a) shall be accompanied by the sworn statement or testimony of a party setting forth sufficient facts that describes the following:

(1) The nature of the confidential information.

(2) The reasons why the information should be treated as confidential information under IC 8-1-2-29 and IC 5-14-3.

(3) The efforts the party has made to maintain the confidentiality of the information.

(e) At the request of the presiding officer or a party, an in camera inspection shall be conducted for the purpose of hearing argument on confidentiality of information submitted under this section. If an in camera inspection is conducted under this section, the information for which confidential treatment is requested shall be made available during the in camera inspection on a provisional basis for the limited purpose of determining its confidentiality. An in camera inspection conducted under this section may, at the discretion of the presiding officer, be publicly noticed under IC 8-1-1-8.

(f) If, during the in camera inspection, the presiding officer determines that the information in question is not confidential or is only partially confidential, the commission shall maintain the confidentiality of the information until:

(1) an appeal to the full commission has been decided; or

(2) until the motion to amend or withdraw the information has been finally ruled upon; whichever occurs later.

(g) Information filed with or submitted to the commission prior to a finding by the commission that the information is confidential shall be available to the public under IC 8-1-2-29.

(h) Parties seeking protective orders to prevent or limit discovery of trade secret or other confidential:

(1) research;

(2) development; or

(3) commercial; information shall make a separate motion under Indiana Rules of Trial Procedure 26(C).

(i) After receiving a preliminary determination that material is entitled to confidential treatment, the following applies:

(1) Confidential documents submitted shall comply with the following:

(A) Include only the pages of the document that contain confidential information.

(B) Be filed on green paper when submitted in hard copy.

(C) Be conspicuously marked:

(i) "CONFIDENTIAL PER ACCESS TO COURT RECORDS RULE 5"; or

(ii) "EXCLUDED FROM PUBLIC ACCESS PER ACCESS TO COURT RECORDS RULE 5"; with the cause number clearly designated.

(D) Add any other markings and designations required by the court rules.

(E) Comply with the specific directives set forth in the determination.

At the discretion of the presiding officers, large or oversized filings may be filed on compact discs or in another manner.

(2) If confidential documents are filed, a public access version must also be filed, as follows:

(A) Public access versions of the documents filed shall be filed on white paper.

(B) Confidential records or parts of records that are to be excluded from public access shall be omitted or redacted from the public access version. The omission or redaction shall be indicated at the place it occurs in the public access version.

(C) At the request of a party, the presiding officer may initially elect not to require submission of a public access version of a confidential document if such document is large or oversized and filed on compact discs or in another manner.

(D) Regarding a public access version of a confidential document that was initially not required under clause (C):

(i) The presiding officer may later elect to require submission of a public access version.

(ii) The presiding officer shall require submission if one (1) of the following occurs:

(AA) a party not permitted to access the confidential information requests a public access version; or

(BB) a request is made under state or federal public access laws and disclosure by the commission is required by law.

170 IAC 1-1.1-4

Indiana Utility Regulatory Commission; 170 IAC 1-1.1-4; filed Oct 30, 2000, 2:10 p.m.: 24 IR 655; readopted filed Apr 6, 2006, 11:00 a.m.: 29 IR 2670; filed May 21, 2008, 9:29 a.m.: 20080618-IR-170070514FRA; readopted filed Jun 14, 2012, 3:04 p.m.: 20120711-IR-170120199RFA

Readopted filed 4/12/2018, 11:21 a.m.: 20180509-IR-170180113RFA

Filed 6/10/2020, 7:38 a.m.: 20200708-IR-170190378FRA