§ 102.4. Challenge procedures to confidentiality designation.
(a) General rule for challenges or requests to review. When a member of the public challenges the public utility’s designation of confidential security information or requests in writing to examine confidential security information, the Commission will issue a Secretarial Letter within 5 days to the public utility notifying the public utility of the challenge to its designation or the request to examine records containing confidential security information.
(1) The matter will be referred to the Law Bureau for recommended disposition by the Commission.
(2) The Commission will have up to 60 days from the date the challenge or written request to review is filed with the Secretary’s Bureau to render a final decision. During the 60-day review period, the following process shall be used:
(i) For identification purposes, the challenger or requester, if not a statutory advocate or Commission employee, shall provide his full name, address, telephone number and a valid photo identification if an individual and its certification number, address and telephone number if it is a Pennsylvania utility.
(ii) For challenges, the challenger shall provide at the time it files the challenge a detailed statement explaining why the confidential security information designation should be denied.
(iii) For requests to review, the requester, if not a statutory advocate or Commission employee, shall provide at the time it files the request a detailed statement explaining the particular need for and intended use of the information and a statement as to the requester’s willingness to adhere to limitations on the use and disclosure of the information requested.
(iv) The public utility shall have 15 days from the date the challenge or request to review is filed with the Secretary’s Bureau to respond to the challenger’s or requester’s detailed statement in support of its position.
(v) The Law Bureau will have 15 days from the date the public utility’s response is filed with the Secretary’s Bureau to issue its recommended disposition to the Commission.
(b) Relevant factors to be considered for requests to review. The Commission will apply a balancing test that weighs the sensitivity of the designated confidential security information and the potential harm resulting from its disclosure against the requester’s need for the information. Applying this balancing test, a written request to review a record containing confidential security information will be granted only upon a determination by the Commission that the potential harm to the public utility or to the public of disclosing information relating to the public utility’s security is less than the requester’s need for the information. If the Commission determines that there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, or mass destruction, the Commission will deny the request. In determining whether to grant a written request to review a record containing confidential security information, the Commission or the Law Bureau will consider, along with other relevant factors, the following:
(1) The requester’s willingness to sign a nondisclosure agreement prepared by the Law Bureau. The agreement shall be executed prior to any release of confidential security information.
(2) The requester’s willingness to consent to a criminal background check.
(3) The conditions, if any, to place on release of the information and the requester’s willingness to consent in writing to comply with these conditions.
(c) Written notification of disposition. The Commission will provide, within the 60-day period, written notification of its decision on confidentiality to the public utility and the member of the public that requested to examine the records containing confidential security information or challenged the designation made by the public utility. Failure by the Commission to act within the 60-day period will be deemed a denial of the challenge or the request to review. In the written notification, the Commission will affirmatively state whether the disclosure would compromise the public utility’s security against sabotage or criminal or terrorist act. When the Commission determines that a request for review will be granted, this grant may not invalidate or otherwise affect the record’s designation as containing confidential security information for any other purpose, request, or challenge.
(d) Appeal of Commission decision. The Commission’s decision on confidentiality under this chapter will be issued by order adopted at a public meeting. The public utility and member of the public shall have up to 30 days following entry of this order to file an appeal in Commonwealth Court.
(e) Treatment of records during pendency of review. During the challenge, request to review, or an appeal of the Commission’s final determination, the Commission will continue to honor the confidential security information designation by the public utility.
(f) Access for statutory advocates. Authorized individuals, as provided for in Act 156, employed by the statutory advocates shall be provided with access to confidential security information on file with the Commission when they provide the Commission with a justification for the need of the information and execute access agreements with the Commission that summarize responsibilities and personal liabilities when confidential security information is knowingly or recklessly released, published or otherwise disclosed. The Commission will provide written notice to the affected public utility prior to disclosure of the confidential security information to the requesting statutory advocate.
(g) Access for Commission staff. Unopened envelopes marked ‘‘Confidential Security Information’’ filed with the Commission will be given only to Commission employees authorized to review the information as provided for in Act 156. Authorized Commission employees will execute access agreements that summarize responsibilities and personal liabilities when confidential security information is knowingly or recklessly released, published or otherwise disclosed. Commission employees may decline designation as authorized individuals. Commission employees that agree to the designation will have their names added to the Authorized Access List maintained by the Commission’s Secretary’s Bureau. The Commission will withdraw designations when the employee no longer requires access to confidential security information because of a change in duties or position or when the employee fails to attend required training.
(h) Discovery requests in adversarial proceedings. The challenge and request to review procedures described in this chapter do not apply to exchanges of documents among parties in adversarial proceedings pending before the Commission. In adversarial proceedings, a party wishing to limit availability of records containing confidential security information must move for an appropriate protective order before the presiding officer in accordance with accepted rules and procedures for issuing protective orders.
Cross References This section cited in 52 Pa. Code § 102.3 (relating to filing procedures); and 52 Pa. Code § 121.4 (relating to filing and Commission review procedures).
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