§ 5.365. Orders to limit availability of proprietary information.
(a) General rule for adversarial proceedings. A petition for protective order to limit the disclosure of a trade secret or other confidential information on the public record will be granted only when a party demonstrates that the potential harm to the party of providing the information would be substantial and that the harm to the party if the information is disclosed without restriction outweighs the public’s interest in free and open access to the administrative hearing process. A protective order to protect trade secrets or other confidential information will apply the least restrictive means of limitation which will provide the necessary protections from disclosure. In considering whether a protective order to limit the availability of proprietary information should be issued, the Commission or the presiding officer should consider, along with other relevant factors, the following:
(1) The extent to which the disclosure would cause unfair economic or competitive damage.
(2) The extent to which the information is known by others and used in similar activities.
(3) The worth or value of the information to the party and to the party’s competitors.
(4) The degree of difficulty and cost of developing the information.
(5) Other statutes or regulations dealing specifically with disclosure of the information.
(b) General rule for nonadversarial proceedings. A petition for a protective order limiting the disclosure of a trade secret or other confidential information in a nonadversarial proceeding shall be referred to the Law Bureau for recommended disposition by the Commission. The Commission will not disclose material that is the subject of a petition for protective order under this provision during the pendency of a request.
(c) Restrictions.
(1) A protective order to restrict disclosure of proprietary information may require that a party receive, use or disclose proprietary information only for the purposes of preparing or presenting evidence, cross-examination or argument in the proceeding, or may restrict its inclusion in the public record.
(2) A protective order may require that parts of the record of a proceeding which contain proprietary information including exhibits, writings, direct testimony, cross-examination, argument and responses to discovery will be sealed and remain sealed unless the proprietary information is released from the restrictions of the protective order by agreement of the parties, or pursuant to an order of the presiding officer or the Commission.
(3) A public reference to proprietary information by the Commission or by a party afforded access thereto must be to the title or exhibit reference in sufficient detail to permit persons with access to the proprietary information to fully understand the reference and not more. The proprietary information must remain a part of the record, to the extent admitted, for purposes of administrative or judicial review.
(4) Prior to the issuance of a protective order, a party may not refuse to provide information which the party reasonably believes to be proprietary to a party who agrees to treat the information as if it were covered by a protective order until the presiding officer or the Commission issues the order or determines that issuance of the order would not be appropriate. The party claiming the privilege shall file a petition for protective order under subsection (a) within 14 days of the date the request for information was received.
(5) A party receiving proprietary information under this section retains the right, either before or after receipt of the information, to challenge the legitimacy of the claim that the information is proprietary and to challenge the admissibility of the proprietary information.
(d) Access to representatives of parties. Proprietary information provided to a party under this section shall be released to the counsel and eligible outside experts of the receiving party unless the party who is releasing the information demonstrates that the experts or counsel previously violated the terms of a recent protective order issued by the Commission. To be eligible to receive proprietary information, the expert, subject to the following exception, may not be an officer, director, stockholder, partner, owner or employee of a competitor of the producing party. An expert who is a stockholder, partner or owner of a competitor or affiliate is eligible unless the ownership interest is valued at more than $10,000 or constitutes a more than 1% interest, or both. Other persons may not have access to the proprietary information except as authorized by order of the Commission or of the presiding officer.
(e) Special restrictions. A protective order which totally prohibits the disclosure of a trade secret or other confidential information, limits the disclosure to particular parties or representatives of parties, except as permitted by subsection (c), or which provides for more restrictive rules than those permitted in subsections (b) and (c) will be issued only in extraordinary circumstances and only when the party from whom the information is sought demonstrates that a greater restriction is necessary to avoid severe and extreme prejudice.
(f) Return of proprietary information. A party providing proprietary information under this section may request that the parties receiving the information return the information and the copies thereof to the party at the conclusion of the proceeding, including appeals taken.
(g) Confidential security information. Challenges to a public utility’s designation of confidential security information or requests in writing to examine confidential security information in nonadversarial proceedings are addressed in Chapter 102 (relating to confidential security information).
Authority The provisions of this § 5.365 issued under the Public Utility Code, 66 Pa.C.S. § § 501, 504—506 and 1501.
Source The provisions of this § 5.365 adopted September 20, 2013, effective September 21, 2013, 43 Pa.B. 5593.
Notes of Decisions This section requires the Commission to balance the alleged proprietary nature against the public interest in disclosure. Proprietary nature is viewed against a public policy favoring access to the administrative process. Lyft, Inc. v. Pennsylvania Public Utility Commission, 145 A.3d 1235 (Pa. Cmwlth. 2016).
Aggregated data are not the type of data generally protected under this section. Lyft, Inc. v. Pennsylvania Public Utility Commission, 145 A.3d 1235 (Pa. Cmwlth. 2016).
Cross References This section cited in 52 Pa. Code § 121.4 (relating to filing and Commission review procedures).
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