BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 772
                                                                  Page  1

          Date of Hearing:   July 7, 2003

                   ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
                             Jerome Edgar Horton, Chair
                     SB 772 (Bowen) - As Amended:  April 29, 2003

           SENATE VOTE  :   29-3
           
          SUBJECT  :  State Energy Resources Conservation and Development  
          Commission (ERCDC): reports: confidentiality and disclosure.

           SUMMARY  :  Establishes the test to be used by the ERCDC in  
          granting a written request for disaggregated or unmasked records  
          of confidential information it has received or developed.   
          Specifically,  this bill  :

          1)Requires disclosure of disaggregated or unmasked confidential  
            records of information, upon a written request, by ERCDC if  
            disclosure does not result in unfair competitive disadvantage  
            to the person that submitted the confidential information.   
            ERCDC may not disclose confidential information if it  
            determines that the public interest outweighs the disclosure  
            of the information and or another applicable law exempts the  
            information from disclosure.

          2)Specifies that confidential information withheld by ERCDC  
            under this section shall not be subject to disclosure under  
            the California Public Records Act (PRA).

           EXISTING LAW  :

          1)Specifies that persons submitting information to ERCDC for the  
            purpose of developing the Integrated Energy Policy Report may  
            request that specific information be held in confidence, and  
            requires ERCDC to grant the request under specified  
            circumstances.

          2)Requires ERCDC to aggregate or mask confidential information  
            to the extent necessary to assure confidentiality if public  
            disclosure of the specific information would result in unfair  
            competitive disadvantage to the person supplying the  
            information.

          3)Establishes a process for ERCDC to disclose disaggregated or  
            unmasked confidential records upon receipt of a written  








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            request and a ruling by the commission or its designee that  
            shows disclosing the information will not result in unfair  
            competitive disadvantage to the person that submitted the  
            information.

          4)Requires ERCDC to withhold disclosure of confidential  
            information for up to 14 working days, allowing the submitter  
            to seek judicial review, if ERCDC grants the request for  
            information.

           FISCAL EFFECT  :  Unknown

           COMMENTS  :

           Purpose of the bill  :  According to the author, SB 1389 (Bowen,  
          Chapter 568, Statutes of 2002) as passed by the Senate included  
          a provision for the handling of requests for records of  
          information submitted to ERCDC for the purpose of preparing the  
          Integrated Energy Policy Report. The provision was later deleted  
          from the bill in the Assembly Utilities and Commerce Committee.  
          This bill reinserts this language into Public Resources Code.   
          The author believes that it is necessary to reintroduce the  
          language because it strikes the proper balance between private  
          interest in maintaining the confidentiality of sensitive  
          commercial information and the public interest in understanding  
          the functioning of energy markets and institutions which serve  
          as the basis for important public decisions.

          The PRA contains language which mirrors the language proposed in  
          this bill.  The basis of the language is that access to  
          information concerning the conduct of the people's business is a  
          fundamental and necessary right of every person in this state  
          unless exempted within PRA.  ERCDC has established through  
          proceedings that certain categories of information are to remain  
          confidential and would not be subject to disclosure under PRA.

           California Energy Commission  :  The California Energy Commission  
          (CEC) has various energy planning and forecasting duties,  
          including the preparation of periodic reports on electricity and  
          natural gas demand, energy efficiency, renewable technologies,  
          public interest energy research, climate change, environmental  
          performance of power plants, and the use, availability and price  
          of transportation fuels.

           Public Resources Code  :  The Public Resources Code Section 25322  








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          provides the manner by which the ERCDC must handle requests for  
          records of information submitted to it by various business  
          interests that deal with energy resources.  Some of the  
          information submitted may be confidential, and some not.   
          Section 25322 provides a means for the submitting party to  
          request that the information provided to the commission be held  
          in confidence, and the commission is required to grant the  
          request under one of three circumstances: (1) the information is  
          confidentiality exempt from the PRA; (2) the information is  
          confidential (proprietary) under specified regulations; or (3)  
          on the facts of the case the public interest served by not  
          disclosing the information clearly outweighs the public interest  
          served by disclosure.  
                       
          All information held in confidence by the commission is  
          aggregated or masked to the extent necessary to assure  
          confidentiality if public disclosure of the specific information  
          would result in an unfair competitive disadvantage to the party  
          that submitted the information.

           The Public Records Act  :  PRA requires public agencies, upon  
          request by any person, to make available for inspection or  
          copying records it maintains. The basic principle underlying the  
          PRA is that all records kept by a public agency are disclosable  
          unless exempt from disclosure.  Thus, PRA provides a long list  
          of records that are exempt from disclosure (such as personnel  
          and medical records) and establishes a process for the court to  
          review the denial of a request for public records.  When a  
          request for inspection or copying of a public record is denied,  
          it is usually because the record is specifically exempt from  
          disclosure.  When a record is not exempt, but the agency denies  
          the request, the person requesting the record may petition the  
          court for an order requiring disclosure.  

           Double-referral  :  This bill was approved by the Assembly  
          Committee on Utilities and Commerce on a vote of 11 to 0 on June  
          30, 2003.

           Previous legislation  :  SB 1389 (Bowen), Chapter, 568, Statutes  
          of 2002, was passed by the Legislature and signed by the  
          Governor in the 2001-2002 Session.  Among its provisions, the  
          bill repealed the planning and forecasting provisions of the  
          Warren-Alquist State Energy Resources Conservation and  
          Development Act and enacted a new mandate for ERCDC to prepare  
          an integrated energy policy report, based on data to be  








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          collected and information to be developed by ERCDC.

           REGISTERED SUPPORT / OPPOSITION  :

           Support/Opposition 
           
          None on file.

           Analysis Prepared by  :    Eric Johnson / G. O. / (916) 319-2531