CPUC Proposed Decisions Will Reduce Confidentiality Period for RPS Contract Prices and Expand Public Access to Bidding Information

[Please note that comment and reply comment dates below were extended for some parties per Administrative Law Judge Manisha Lakhanpal’s September 30, 2021 Ruling Re Allowing Parties in Rulemaking 05-06-040 to File Comments on Proposed Decision and Alternate Proposed Decision Issued in Rulemaking 18-07-003. See our update here].

The California Public Utilities Commission (CPUC) has issued alternative draft decisions recommending changes to the confidentiality rules that protect competitively sensitive energy prices and other terms in Renewables Portfolio Standard (RPS) contracts from public disclosure.

The Proposed Decision (PD) issued by Administrative Law Judges Lakhanpal and Sisto revises the confidentiality matrix for RPS procurement records, which was originally adopted in Decision 06-06-066. Specifically:

• The PD shortens the confidentiality period for energy and capacity pricing and net short position information from four to three years in total, specifying that the data may be protected for the year in which the information is reported and two years into the future, instead of three years into the future.The PD justifies this change by finding that “the average time for renewable projects to come online has shortened to less than three years” and that “declining RPS prices and higher commitment to RPS procurement by retail sellers indicate market competitiveness.”
• The window of confidentiality for individual contract data for all retail sellers is shortened to allow public access to RPS-eligible resource contracts 30 days after the commercial operation date/energy delivery start date or three years from the date of CPUC approval, whichever comes first. For contracts that do not require CPUC approval, contract price and contract terms become public 30 days after the commercial operation date/energy delivery start date or three years after the contract execution date, whichever comes first.
• Contract amendments will not modify the confidentiality requirements that apply to prior versions of the contract. The amended contract will be public 30 days after the new contract execution date.
• Pricing information “in aggregated form” from losing bids in the investor-owned utilities’ (IOU) RPS solicitations will be made publicly accessible after the final contracts are submitted for CPUC approval if at least three bidders are in the resource category. Specific bids and/or individual bidders’ bid information may be kept confidential for three years after the close of the related RPS solicitation. Bid evaluation guidelines will be public, and other scoring and evaluation information will be confidential for 3 years after the close of the solicitation.
• Confidentiality rules for RPS compliance reports will be uniform for all retail sellers.
• The revised confidentiality rules and matrix will become applicable as of the effective date of the final decision and include all RPS procurement contracts signed on or after that date. RPS compliance reports submitted January 1, 2022 and onward will follow the revised rules.

The ALJs’ Proposed Decision responds to legal arguments raised by utilities, Direct Access service providers, and independent energy producers by finding that the public has a constitutional and statutory right to “access most government information” and that statutes protecting the confidentiality of market data and trade secrets must be narrowly construed in favor of public access.

The Alternate Proposed Decision of Assigned Commissioner Rechtschaffen differs from the ALJs’ Proposed Decision in several areas:

• For RPS contracts requiring CPUC approval, the Alternate PD provides that price and terms may be kept confidential for six months after Commission approval. Similarly, for RPS contracts that do not require CPUC approval, the Alternate PD provides that price and terms may be kept confidential for six months after contract execution.
• For Renewable Energy Credit (REC) only contracts, the Alternate PD provides for six months of confidentiality after contract execution for both existing and new facilities, as compared to the PD, which provides that contract prices for REC only contracts will become public 30 days after contract execution for existing facilities, and 30 days after commercial operation date for new facilities yet to be built.
• The Alternate PD requires individual bidders’ bid information, and bid evaluation and scoring information to be public one year after the final contracts are submitted to the CPUC for approval, or one year after the solicitation is closed if no contracts are executed.

Comments are due on the Proposed Decision and Alternate Proposed Decision on October 6. Reply comments are due October 11.

The Proposed Decision and Alternate Proposed Decision may be included on the agenda for a vote at the CPUC’s October 21 business meeting.

Contact: Andy Brown or Jed Gibson