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December 8, 2010
Halifax-
Specifically, Halifax is seeking any records related to the variable energy price
contracts of Hess Corporation, ConEdison Solutions, and Constellation NewEnergy,
including the sales agreement and associated disclosure statements. As only noted
by Matters (10/28/08), under the revised Uniform Business Practices, sample contracts
and disclosure statements must be prepared and filed with the PSC for compliance
review purposes, even for contracts used for serving large non-
Several ESCOs have sought, and have been granted, confidential treatment of the sales agreements filed for compliance with the UBP. In the past, the PSC has routinely dismissed FOIL requests for customer count and load data; however, the request for copies of sales agreements is a novel issue, as ESCOs have only had to file such agreements with the PSC since early 2009.
"The instant FOIL Request seeks to undermine and interfere with the established confidential process by which the Commission ensures that customer sales agreements are in compliance with the UBP requirements without interfering with the competitive retail energy market," Hess said in a statement of necessity supporting continued confidential treatment.
"On its website, Halifax describes itself as providing, 'customers with access to inexpensive wholesale power,' which, 'eliminates the need for third party suppliers,' such as an ESCO," Hess noted.
"It is therefore reasonable to presume that the current FOIL Request is being used by Halifax to further its competitive goal of eliminating the need for ESCOs," Hess said.
Hess said that the documents sought by Halifax are protected from public release under the exemption set forth in Section 87(2)(d) of the Public Officers Law which provides that an agency may deny access to records that are derived from information obtained from a commercial enterprise, and which if disclosed, "would cause substantial injury to the competitive position of the subject enterprise." Substantial harm results from both the commercial value of the information to competitors as well as from the cost of acquiring the information through other means, Hess added.
Hess noted that the sales agreement at issue is, "an especially valuable competitive tool as it reflects the distillation, analyses and intensive effort undertaken by Hess to determine the best means from a competitive standpoint by which it will structure its contractual customer relationships in furtherance of its efforts in the retail market."
"[S]ince the very essence of competition is determined by the costs and opportunities encountered by members within the industry, there exists a potential unfair advantage to emerging or potential competitors who acquire valuable information made available under a FOIL Request in lieu of the cost of having to undertake their own efforts," Hess continued. "The development of a workable contract document is a lengthy and costly process that requires the dedication of significant technical, legal and marketing and customer relation resources ... [in order for Hess to] ensure compliance with applicable regulations, protect its legal and business interests, and maximize its marketing opportunities," Hess said.
Finally, Hess said that Halifax's request should be denied as Halifax has not identified any public benefit from disclosure. "Although Halifax apparently seeks access to this competitively sensitive document to further its competitive goals, there is no articulated bass explaining how or in what manner the public is better served by disclosure of the data," Hess said.
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