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