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
SB 772
Page 2
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
SB 772
Page 3
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
SB 772
Page 4
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