Confidential Information

PURPOSE: This rule prescribes the procedures for handling confidential information in cases before the commission. (1) All items filed in case proceedings before the commission shall be open to the public unless protected pursuant to this rule or otherwise protected by law. (2) Confidential Designation. (A) Any person may submit to the commission, without first obtaining a protective order, information designated as confidential if that information is— 1. Customer-specific information; 2. Employee-sensitive personnel information; 3. Marketing analysis or other market-specific information relating to services offered in competition with others; 4. Marketing analysis or other market-specific information relating to goods or services purchased or acquired for use by a company in providing services to customers; 5. Reports, work papers, or other documentation related to work produced by internal or external auditors, consultants, or attorneys, except that total amounts billed by each external auditor, consultant, or attorney for services related to general rate proceedings shall always be public; 6. Strategies employed, to be employed, or under consideration in contract negotiations; 7. Relating to the security of a company’s facilities; or 8. Concerning trade secrets, as defined in section 417.453, RSMo. (B) Any information designated as confidential shall be submitted with a cover sheet or pleading describing how such information qualifies as confidential under subsection (2)(A) of this rule, including the specific subsection relied upon and an explanation of its applicability. Only the specific information that qualifies as confidential shall be designated as such. In addition, each document that contains confidential information shall bear the designation “Confidential” and the paragraph(s) of 4 CSR 240-2.135(2)(A) through which that information is protected. (3) Protective Order. (A) In addition to information that may be designated as confidential as set out in this rule, any person may seek a protective order from the commission designating specific information as confidential. If a protective order is granted, the protected information shall be considered confidential information. A request for a protective order shall be made as follows: 1. By filing a separate pleading denominated “Motion for Protective Order,” which may initiate a new case if a related case is not already pending; 2. The pleading shall state with particularity why the moving party seeks protection and what harm may occur if the information is made public; 3. The pleading shall also state whether any of the information for which a claim of confidentiality is made can be found in any other public document; (B) The information for which a claim of confidentiality is made may be designated as confidential while the motion is pending if only the specific information at issue is designated as such. (4) The commission may order greater protection than that provided by a confidential designation upon a motion explaining what information must be protected, the harm to the disclosing entity or the public that might result from disclosure of the information, and an explanation of how the information may be disclosed while protecting the interests of the disclosing entity and the public. (A) While such a motion is pending, the disclosing party requesting greater protection will be afforded the protection sought. However, in all circumstances, the disclosing party must, at a minimum, provide a detailed summary of the information at issue. (B) Any document that contains such information shall bear the designation “Highly Confidential,” rather than “Confidential,” but shall otherwise follow the formatting delineated in section (10) of this rule. (5) When a party seeks discovery of information that the party from whom discovery is sought believes to be confidential, the party from whom discovery is sought may designate the information confidential. (A) No order from the commission is necessary before a party in any case pending before the commission may designate discovery responses confidential, and such information shall be protected as provided in this rule. (B) The party that designates discovery information confidential shall inform, in writing, the party seeking discovery how that information qualifies as confidential under subsection (2)(A) of this rule at the same time it responds to the discovery request. If the party seeking discovery disagrees with the designation placed on the information, that party shall follow the informal discovery dispute resolution procedures set forth in 4 CSR 240-2.090(8). If the party seeking discovery exhausts these dispute resolution procedures, that party may file a motion challenging the designation. (6) Confidential information may be disclosed only to the attorneys of record for a party and to employees of a party who are working as subject-matter experts for those attorneys or who intend to file testimony in that case, or to persons designated by a party as an outside expert in that case. (A) The party disclosing information designated as confidential shall serve the information on the attorney for the requesting party. (B) If a party wants any employee or outside expert to review confidential information, the party shall identify that person to the disclosing party by name, title, and job classification before disclosure. The person to whom the information is to be disclosed shall comply with the certification requirements of section (7) of this rule. (C) A customer of a utility may view his or her own customer-specific information, even if that information is otherwise designated as confidential. (7) Any employee of a party or outside expert retained by a party that wishes to review confidential information shall first certify in writing that such expert or employee of a party will comply with the requirements of this rule. (A) The certification shall include the signatory’s full name, permanent address, title or position, date signed, the case number of the case for which the signatory will view the information, and the identity of the party for whom the signatory is acting. (B) The signed certificate shall be filed in the case. (C) The party seeking disclosure of the confidential information shall provide a copy of the certificate to the disclosing party before disclosure is made. (8) If information to be disclosed in response to a discovery request is information concerning another entity—whether or not a party to the case—that the other entity has indicated is confidential, the disclosing party shall notify the other entity of its intent to disclose the information. If the other entity informs the disclosing party that it wishes to protect the information, the disclosing party shall designate the information as confidential under the provisions of this rule. (9) Any party may use confidential information in prefiled testimony, in a pleading, at hearing, or in a brief if the same level of confidentiality assigned by the disclosing party, or the commission, is maintained. Before including nonpublic information that it has obtained outside this proceeding in its pleading or testimony, a party shall ascertain from the source of the information whether that information is claimed to be confidential. (10) Any prefiled testimony that contains information designated as confidential shall be filed with both a public and a nonpublic version as follows: (A) For the public version, the confidential portions shall be removed. The removal of confidential information shall be indicated by underlining and two (2) asterisks before and after the confidential information, e.g., **confidential information removed**. The designated information shall be removed in such a way that the lineation and pagination of the public version remains the same as the confidential version; (B) For the nonpublic version of the prefiled testimony, the confidential information shall be indicated by underlining and by two (2) asterisks before and after the confidential information, e.g., **confidential information**; (C) At the hearing, the party offering the prefiled testimony shall present a public version of the testimony in which the AND INSURANCE confidential portions are removed. The public version of the testimony will be marked as Exhibit ___. The offering party shall also present a separate copy of the prefiled testimony containing confidential information, sealed in an envelope. The version of the testimony containing confidential information will be marked as Exhibit ___C. (D) These delineation requirements shall also be used when designating confidential portions of pleadings and briefs. (11) At any time after the filing of discovery, testimony, brief, or pleading that contains information designated as confidential, the commission may challenge the designation of the discovery, testimony, brief, or pleading. A party may also challenge such a designation at any time by filing an appropriate motion with the commission. (12) All live testimony, including cross-examination and oral argument, which reveals information that is designated as confidential may be offered only after the hearing room is cleared of all persons except those persons to whom the confidential information is available under this rule. The transcript of such live testimony or oral argument shall be kept under seal and copies shall be provided only to the commission and attorneys of record. The contents of such transcripts shall not be disclosed to anyone other than those permitted access to the designated information under this rule. (13) All persons who have access to information under this rule shall keep the information secure and may neither use nor disclose such information for any purpose other than preparation for and conduct of the proceeding for which the information was provided. This rule shall not prevent the commission’s staff or the Office of the Public Counsel from using confidential information obtained under this rule as the basis for additional investigations or complaints against any public utility. (14) After receiving a notice of appeal, the commission will deliver confidential testimony constituting part of the record before the commission to the reviewing court under seal, unless otherwise directed by the court. (15) Within ninety (90) days after the completion of a proceeding, including judicial review, all copies of all confidential information, testimony, exhibits, transcripts, or briefs in the possession of any party shall be returned to the party claiming a confidential interest in such information if that party requests that the information be returned. Otherwise, the information shall be destroyed by the party possessing such information. Any notes pertaining to such information shall be destroyed. (16) The provisions of sections (6), (7), and (15) of this rule do not apply to officers or employees of the commission or to the public counsel or employees of the Office of the Public Counsel. The officers or employees of the commission and the public counsel and employees of the Office of the Public Counsel are subject to the nondisclosure provisions of section 386.480, RSMo. Neither the officers or employees of the commission, nor the public counsel and the employees of the Office of the Public Counsel shall use or disclose any information obtained in discovery for any purpose other than in the performance of their duties. (17) Outside experts of the staff of the commission or the Office of the Public Counsel who have been contracted to be witnesses in the proceeding shall have access to designated information and testimony on the same basis as the staff of the commission and the Office of the Public Counsel except that the outside expert shall comply with the provisions of sections (7) and (15). Outside experts of the staff of the commission and the Office of the Public Counsel who have not been contracted to be witnesses in the proceeding shall be subject to all provisions of this rule. (18) A claim that information is confidential constitutes a representation to the commission that the claiming party has a reasonable and good faith belief that the subject document or information is confidential pursuant to the section of this rule cited as justification for the designation. (19) The commission may waive or grant a variance from any provision of this rule for good cause shown. (20) Any reference in any statute or other regulation of this commission that refers to proprietary or highly confidential information shall be interpreted to mean confidential information under this rule. AUTHORITY: sections 386.040 and 386.410, RSMo 2016.* This rule originally filed as 4 CSR 240-2.135. Original rule filed May 25, 2006, effective Jan. 30, 2007. Amended: Filed March 2, 2011, effective Oct. 30, 2011. Amended: Filed Nov. 21, 2016, effective July 30, 2017. Moved to 20 CSR 4240-2.135, effective Aug. 28, 2019. *Original authority: 386.040, RSMo 1939, amended 1943, 1965 and 386.410, RSMo 1939, amended 1947, 1977, 1996.