ORDER NO. 99-386

ENTERED JUN 22 1999

This is an electronic copy. Appendices and footnotes may not appear.

OF OREGON

UP 158

DISPOSITION: MOTION FOR ADDITIONAL PROTECTION GRANTED

On May 17, 1999, Portland General Electric Company (PGE) filed a Motion for Additional Protection under Paragraph 16 of the Standard Protective Order. PGE requests that copies of the bids of short list bidders be disclosed to Staff alone.

Staff served data requests on PGE on April 22, 1999, and PGE responded on May 5. The response to Request 1.c. indicated that the information is highly confidential and that PGE would endeavor to determine how it could convey the information to Staff. PGE decided to move for additional protection under the standard protective order to address its concerns.

Paragraph 16 of the standard protective order provides: "A person desiring additional protection may move for any of the remedies set forth in ORCP 36(C)." Paragraph 16 requires a motion for additional protection to state the parties involved, the nature of the information involved, the exact nature of the relief requested, and the specific reasons the relief is necessary.

According to PGE, the parties involved in this issue are Staff and PGE. The information for which PGE seeks additional protection is the information responsive to the following data request:

Please provide the following:

A copy of each of the bids submitted by each of the short list of Colstrip bidders and any additional information they provided.

PGE’s request is for an order permitting PGE to disclose information responsive to this data request to Commission Staff only. The relief is necessary, PGE asserts, because of the extremely sensitive nature of the information and the risk that PGE’s business will be compromised by dissemination of this information to the parties in this docket.

PGE’s Position. Staff seeks bids from both winning and losing short list bidders. PGE states that this information was provided to PGE under strict confidentiality agreements because disclosure of the information would harm the competitive positions of PGE and other sellers. According to PGE, the information includes material used in evaluating the sale. This is business and financial information of the most commercially sensitive nature. Much of the requested information, PGE asserts, has not been disclosed even to all parties to the Montana asset sale transaction. Moreover, the bidders had reasonable expectations that their submissions would be kept confidential. Moreover, while Montana Power Company had access to all the requested information, the other sellers, including PGE, do not have all information unrelated to the assets they were selling.

PGE also maintains that the disclosure of the information in response to this data request could jeopardize the closing of this sale. Furthermore, an unwarranted disclosure of this information could result in liability, especially if the sale does not close.

An additional concern PGE notes is the potential effect on future auctions of Oregon utility assets. The number of potential intervenors in this case is large. Intervenors could include not only customer groups and PGE competitors but also unsuccessful bidders and their competitors. If these parties obtain copies of bids that were made under a promise of confidentiality, even if subject to the Commission’s standard protective order, no one can predict the possible effects on future auctions. Not only could disclosure affect future auctions in this state, but it could foreclose future participation of Oregon utilities in auctions held in other states.

Even if the Commission does not approve the currently proposed sale, disclosure will have detrimental effects, according to PGE. If the proposed sale does not close and the property must be reauctioned, disclosure of the short list bidders’ bids will seriously jeopardize bids in a later auction and will adversely affect ratepayers’ desires to have the plant sell for the highest price possible.

Finally, PGE argues that it is obligated to assure the confidentiality of information submitted to the sellers’ professional advisors, such as Merrill Lynch. Having access to advice from such companies is essential in conducting utility business, and PGE will face severe obstacles in hiring them in the future if they cannot rely on the protection of confidential information that is provided to them.

PGE asks that it be allowed to provide Staff’s requested information under this limited protective order. Given the high risk of competitive harm and based on its obligations under various confidentiality agreements, PGE is unwilling to provide this information to other parties in this case.

Disposition: PGE’s concern about harm from disclosure of commercially sensitive information is persuasive. No party has filed opposition to this motion, and the time for response is past. The motion should be granted.

 ORDER

IT IS ORDERED that the request for modification of the standard protective order filed by PGE is granted.

 Made, entered, and effective ________________________.

 A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements in OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070(2). A party may appeal this order to a court pursuant to applicable law.