N.Y. PSC Records Officer Denies Confidential Treatment for ESCO Standard Form Contracts

Email This Story
December 28, 2010

A New York PSC records access officer denied Hess Corporation's request for continued confidential treatment of a standard variable rate contract submitted as part of compliance with the Uniform Business Practices, and granted a Freedom of Information Law Request (FOIL) from Halifax-American Energy Co. to obtain a copy of the contract as well as sample contracts from several other ESCOs.

As only reported in Matters (12/8), Halifax-American Energy, a unit of Freedom Energy Logistics which acts as an agent for South Jersey Energy Co., sought disclosure of standard form variable rate contracts filed by Constellation NewEnergy, Inc.; Consolidated Edison Solutions, Inc.; Hess Corporation; Dominion Retail, Inc.; Integrys Energy Services of New York, Inc.; and Integrys Energy Services, Inc.  Under the Uniform Business Practices, as revised in 2008, 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-residential customers.  

The contracts filed by Dominion Retail and the Integrys companies had not been confidentially filed and were provided to Halifax-American Energy upon its request.  Contracts from Hess and ConEdison Solutions had been filed confidentially, which provided them with an opportunity to file a "statement of necessity" to maintain confidential protection.  Only Hess filed such a statement, which was denied (continued confidentiality for ConEdison Solutions' contract was also denied for failure to contest the FOIL request).

Additionally, the records officer informed Halifax-American Energy that after a diligent search, pursuant to POL § 89(3), the Department of Public Service did not have records for Constellation NewEnergy responsive to Halifax-American's request.

Regarding Hess' opposition to disclosure, the records officer concluded that Hess did not meet the burden for continued confidential protection, distinguishing the standard form contracts from customer counts, revenue, and gas flow data which the Commission has previously ruled merit confidentiality.

The records officer agreed that Hess faced "actual competition," thereby meeting the first prong of the confidentiality test, and thus the decision hinged on the second prong -- whether disclosure would be likely to cause substantial injury to the competitive position of the subject enterprise.

The records officer noted, "that the sales contracts at issue do not preclude either party, at its discretion, to release the terms of the contract."

"It is certainly possible that one ESCO could have reviewed the sales contract of another ESCO, since they are all substantially similar," the records officer said.

While customer-specific agreements, containing price and volume information previously determined to be confidential, could bear significant weight on an individual ESCO's market position, the records officer noted that individual contracts were not at issue here, and the standard form contracts do not contain such information.

Hess had argued that it devoted significant resources in drafting a contract that met its business needs while complying with the UBPs, and that disclosing the sample contract would be of competitive value to other market participants because it would allow them to acquire valuable information on compliant contract language and to avoid costs of drafting their own contracts.

However, the records officer said that, "[h]ow an ESCO decides to format its sales contract to meet the requirements of the UBP is unlikely to bear significant weight on the individual ESCO's market position."  

Furthermore, even if consideration of such disclosure rose to level of granting confidentiality, the records officer said that Hess did not submit any substantial evidence, such as an affidavit by an economist or other expert, to meet its burden of proof for substantial competitive injury.

The records officer's determination may be appealed to the Commission Secretary.  Hess said that it is currently weighing its options.

Email This Story

HOME

Copyright 2010 Energy Choice Matters.  If you wish to share this story, please email or post the website link; unauthorized copying, retransmission, or republication prohibited.

 

Be Seen By Energy Professionals in Retail and Wholesale Marketing

Run Ads with Energy Choice Matters

Call Paul Ring

954-205-1738

 

 

 

 

 

Energy Choice
                            

Matters