Loading...
003 PSCo Response to Mtn for Protective Order with exhibits and Proposed Order 1 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. _________________________________________________ Attorneys for Respondent, Public Service Company of Colorado John R. Sperber, Atty. Reg. No. 22073 Sarah M. Kellner, Atty. Reg. No. 38111 FAEGRE BAKER DANIELS LLP 1144 Fifteenth Street, Suite 3400 Denver, Colorado 80202 Telephone: (303) 607-3500 Fax: (303) 607-3600 jack.sperber@FaegreBD.com sarah.kellner@FaegreBD.com COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 RESPONSE TO MOTION FOR PROTECTIVE ORDER Respondent, Public Service Company of Colorado (“PSCo”) through its counsel, Faegre Baker Daniels LLP, Responds to Petitioner’s Motion for Protective Order. INTRODUCTION PSCo very much agrees with Boulder that the information it seeks to use in this action, including Exhibits 1, 3, and 4 to the Petition, must be protected from public disclosure because it 2 includes Critical Energy Infrastructure Information (“CEII”) and other highly confidential information about PSCo’s electric distribution system, substations, and customers. However, neither Boulder, PSCo, nor any other party is authorized to use this information at all in these proceedings, much less seek a protective order allowing others to view it. This is because the Colorado Public Utilities Commission (the “PUC”) has already entered multiple protective orders in ongoing proceedings that prohibit Boulder from using any highly confidential information, including CEII, in any “subsequent or concurrent civil or regulatory proceedings” without seeking and obtaining an order from the PUC allowing it to do so. Boulder has not yet sought—let alone obtained—any such order. Moreover, if the PUC were to authorize the parties to use such information in this case, the terms of any protective order should be consistent within the conditions imposed by the PUC. While the PUC Orders require all parties to protect confidential information, Boulder’s proposed protective order would impose unilateral obligations on PSCo and other Respondents, but not Boulder itself. Finally, because some of the confidential information relates to one or more parties to the PUC Proceedings who were not named as Respondents in this action but that may seek to intervene or to address such issues in the context of any request for PUC waivers, the Court should afford all interested parties an opportunity to weigh in. For all these reasons, the Court should deny Boulder’s Motion unless and until Boulder has received the requisite permission from the PUC necessary to use the highly confidential information here. 3 FACTUAL BACKGROUND Petitioner’s Motion, and indeed this entire condemnation action, is premature and in violation of multiple previous orders entered by both the Boulder District Court and the PUC. Boulder’s Petition in Condemnation seeks to condemn property in order to, “separate the existing electrical distribution system serving customers in the vicinity of the City into two separate distribution systems … one serving only customers within the City … and the other serving [PSCo] customers by reconfiguration of the existing equipment and the addition of new facilities so that each s ystem can be operated independently of the other.” Pet. ¶ 6. As the Boulder District Court (Judge LaBuda) held in 2015, this monumental undertaking triggers the PUC’s jurisdiction to oversee the safety, effectiveness and reliability of the state-wide interconnected electric distribution system: The PUC has the authority to regulate public utilities and the facilities, which provide service within the City of Boulder as well as unincorporated Boulder. … [I]t is necessary and appropriate for the PUC to determine how facilities should be assigned, divided, or jointly used to protect the system’s effectiveness, reliability, and safety. Such a determination must be made prior to the City’s condemnation of property for utility municipalization. See January 14, 2015, Order Re: Judicial Review of the Colorado Public Utilities Commission Decisions (Case No. 14CV30047, J. LaBuda). Following Judge LaBuda’s Order, on July 7, 2015, Boulder initiated PUC Proceeding 15A- 0589E by filing an application requesting approval of the transfer of certain assets owned by PSCo to the City for the operation by the City of a municipal electric utility and for associated authorizations and relief (the “PUC Proceeding”). The PUC Proceeding is ongoing today, and 4 Boulder still has not received the required PUC Orders necessary for it to proceed with this condemnation case.1 As the PUC case progressed, the City requested discovery of PSCo information, including PSCo’s baseline model for the existing distribution system and substations, GIS distribution map and attribute data, customer information and other highly confidential information. Accordingly, Boulder, PSCo and certain Parties in the Proceeding entered into an Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior to Filing Second Supplemental Application (the “Agreement,” attached to the Motion referenced in Exhibit A below). Section V of the Agreement recognized the highly confidential nature of the requested discovery and provided as follows: The nature of the data being requested includes trade secrets, privileged information, and confidential commercial, financial, engineering, geological, or geophysical data. The proposed discovery process therefore implicates safety and security issues and requirements which is why the Parties agree that the information above to be provided by PSCo shall be deemed Highly Confidential. Likewise, information of a similar type or nature developed by other Parties shall also be Highly Confidential. For example, any Synergi Power Systems model incorporating a separation plan developed by the City by modifying PSCo’s baseline model shall be Highly Confidential The City then filed a Motion seeking extraordinary protection for highly confidential information, a limited waiver of the PUC’s Data Privacy Rules and approval of the Agreement. A copy of the Motion and the Agreement included with the Motion is attached as Exhibit A. The 1 Boulder’s Petition in Condemnation is therefore premature and in violation of Judge LaBuda’s Order. Indeed, Judge LaBuda also dismissed a similar, earlier attempt by Boulder to prematurely file a condemnation action without such PUC approvals, finding that this Court lacks subject matter jurisdiction over a condemnation case until Boulder obtains such orders. See February 13, 2015 Order Re: Respondents’ … Motion to Dismiss under C.R.C.P. 12(b)(1) for Lack of Subject Matter Jurisdiction (Case No. 2014CV30890). That and other deficiencies with Boulder’s Petition will ultimately be addressed in PSCo’s Answer or other Response to the Petition when due. 5 Motion was granted by the Commission on April 19, 2016, by Decision C16 -0336-I, a copy of which is attached as Exhibit B. Upon the entry of Decision C16-0336-I, PSCo provided to the City its highly confidential Model, GIS data, the customer information and other highly confidential information covered by the Agreement and Decision C16-0336-I. Several subsequent PUC Orders extended the extraordinary protections of Decision C16-0336-I to other highly confidential data and information produced in the Proceeding and to testimony and exhibits filed in the proceeding containing or based upon the highly confidential data and information. These subsequent PUC Orders are attached as Exhibits C, D and E. As required by the PUC Orders, the parties and their attorneys executed and filed Highly Confidential Non-Disclosure Agreements in the Boulder PUC Proceeding, stating that they had read the Agreement and agreed to be bound by the protective provisions relating to highly confidential information contained in Rules 4 CCR 723-1-1100 through 1102. Such NDAs were executed and filed in the PUC Proceeding by the undersigned counsel and by the City’s counsel in this condemnation action, Don Ostrander, Kathy Haddock and Tom Carr (as well as numerous other persons). The PUC’s Rules prohibit the use of confidential and highly confidential information for any purposes other than the proceeding in which such confidential and highly confidential information is produced or filed. 4 CCR 723-1-1101(h). However, Section VIII of the Agreement recognized that the City (or other parties) might need to use some of the highly confidential information in other civil or regulatory proceedings and expressly required a waiver from the PUC for such use: 6 During this proceeding, as required by Commission Rule 1101(h), all Confidential and Highly Confidential Information made available by a party shall not be used or disclosed for purposes of business or competition, or for any other purpose other than for purposes of Proceeding No. 15A-0589E. Within the pendency of this Proceeding No. 15A-0589E, a Party may request by written motion to the Commission a limited waiver of Rule 1101(h) to permit identified Confidential and Highly Confidential information produced in Proceeding No. 15A-0589E to be used in identified subsequent or concurrent civil or regulatory proceedings. Except as provided herein, or otherwise modified by the Commission, the Commission’s rules and orders concerning Confidential and Highly Confidential information shall apply, including, but not limited to, the requirement that all Confidential and Highl y Confidential information (including notes and copies) be returned. Notwithstanding anything herein to the contrary, the City and PSCo acknowledge that some Confidential and Highly Confidential information in this proceeding may need to be used in other proceedings related to the City’s efforts to municipalize its electric service. However, the City and PSCo acknowledge that it is difficult to know, at this time, the nature and extent to which Confidential and Highly Confidential information in this proceeding may be needed in other proceedings. Until the Commission rules in this Proceeding on a request for a limited waiver of Rule 1101(h) as provided in the preceding paragraph, the City may maintain all of the Confidential and Highly Confidential information provided by PSCo in this proceeding. (Emphasis added). RESPONSE I. Safety, security, and reliability concerns and PUC Orders preclude Boulder from using any confidential information here before first seeking relief at the PUC. The City of Boulder has not requested a limited waiver of Rule 1101(h) to allow it to use any of the Highly Confidential information from the Boulder PUC Proceeding to prepare, file or prosecute any condemnation action. Nonetheless, Petition Exhibits 1, 3, and 4 contain Highly Confidential Information from the PUC Proceeding protected by the PUC Orders described above. Petition Exhibit 1 is a spreadsheet that is 1,579 pages long. It is a list of PSCo physical electric distribution assets the City seeks to acquire. Although not designated as confidential by Boulder, the Exhibit is a revised version of Highly Confidential Attachment SDC-8 used by the 7 City in the PUC Proceedings. It contains four sections of information, totaling over 250 pages, that were classified as Highly Confidential and, therefore, subject to the PUC Orders.2 The City of Boulder also posted the entirety of Petition Exhibit 1 on its website, including the highly confidential sections, and the first page of the Exhibit gives directions to anyone reviewing it about how to find the complete document on Boulder’s website.3 Confidential Exhibit 3 also contains highly confidential information subject to the Agreement and the PUC’s Orders, including substation one-line diagrams and substation general arrangements. This was the fifth category of Highly Confidential Information that was protected by the PUC’s Orders referenced above.4 Despite the allegations in the Petition, the City did not serve PSCo with Confidential Exhibit 4.5 But Paragraph 24.D. of the Petition describes Exhibit 4 as “the mapping, in GIS format, that includes all of the facilities described on Exhibit 1 and Confidential Exhibits 2 and 3 and streetlights and appurtenances.” Paragraph 28 of the Petition acknowledges that Confidential Exhibit 4 (GIS Map) was created from a model of the existing distribution facilities serving Boulder customers provided by Xcel as part of the PUC Proceeding. The Agreement specifically 2 Exhibit D is the specific Order approving a Motion in which the four sections of Highly Confidential Information (along with a fifth section not in Petition Exhibit 1) were identified in an attachment to the Motion. 3 To avoid publicly identifying the highly confidential sections within Petition Exhibit 1, PSCo has privately advised the City of Boulder of the pages of Petition Exhibit 1 that contain the highly confidential sections and requested that they be removed from all public sources. 4 Decision C18-0885-I (Exhibit E) authorized the City and PSCo to exchange Highly Confidential Information from the PUC Proceeding as needed pertaining to the City’s separation plan (such as in connection with the System Impact Studies) but did not authorize the use of any Highly Confidential in a condemnation action filed by the City. 5 In fact, it was not until today that Boulder finally provided PSCo’s counsel a copy of Exhibit 4 via FedEx in the form of an encrypted flash drive requiring specialized software to review. Accordingly, PSCo has not yet had a chance to analyze the exhibit. 8 included in the definition of Highly Confidential Information all information of a similar type or nature developed by the Parties, including “any Synergi Power Systems model incorporating a separation plan developed by the City by modifying PSCo’s baseline model shall be Highly Confidential.” Based upon Boulder’s description, Exhibit 4 likely contains PSCo’s baseline model and other protected information. Until the City of Boulder requests and obtains a waiver from the PUC authorizing it to use this highly confidential information in connection with a condemnation proceeding, no party may use or disclose Exhibits 1, 3 and 4, or otherwise use the confidential materials disclosed in the PUC Proceedings in this case. Granting Boulder’s Motion would allow Boulder to further breach the PUC’s order and would put this Court at odds with the PUC’s current rulings. This Court should therefore deny Boulder’s Motion unless and until the PUC: (1) rules on Boulder’s ability to use the confidential information from those proceedings here; and (2) provides this Court and the parties the appropriate parameters and restrictions necessary to protect that information’s security. II. Boulder’s Proposed Protective Order is inconsistent with the confidentiality obligations imposed by the PUC and inadequate to protect CEII and other highly confidential information. Boulder, PSCo, and other interested parties worked together to develop agreements about how to handle such highly confidential information in the PUC proceedings. Any protective order ultimately entered in this case should be consistent with that agreement and the corresponding PUC Orders. Boulder’s proposed protective order focuses almost entirely on information that Boulder has provided or intends to provide PSCo and other Respondents and imposes obligations and duties on PSCo and Respondents to protect that information. See Motion. This ignores the fact 9 that almost all the information Boulder intends to use is actually PSCo’s confidential information relating to PSCo’s system and customers.6 Yet, unlike the PUC Orders, Boulder’s proposed protective order imposes almost no obligations on Boulder to protect that information. See e.g. Motion at Paragraphs 2(a) (requiring only written consent from Boulder to disclose information); 2(g)(ii) (allowing only Boulder to designate deposition testimony as confidential); 2(h)(i)(limiting only Respondents’ disclosure to outside parties); 3(a) and (b)(imposing data security and data breach obligations only on Respondents but not Boulder). PSCo agrees that there will be significant highly confidential information that must necessarily be used in these proceedings at some point if this action proceeds. However, all parties, including Boulder, must take appropriate precautions to maintain that confidentiality. This Court should deny Boulder’s Motion because it fails to provide such necessary protections, and should instead require Boulder to seek leave from the PUC so that all necessary protections are in place before Boulder discloses additional confidential information. III. Other interested parties should be given the opportunity to weigh in on the protection of the highly confidential information. Other parties may also have an interest in the protection and availability of the confidential information, including parties who have appeared before the PUC and have not been named by Boulder but who will be significantly impacted by Boulder’s condemnation action or that have 6 Surely, there will also be some information about Boulder’s planned system as well, which should also be given protection. That planned system information would contain a combination of PSCo’s confidential information about existing and future infrastructure as well as Boulder’s. All information and all parties, including Boulder, should be subject to restrictions and obligations relating to that confidential information as well. 10 specific interests in information about them as customers. These parties may choose to intervene here. Boulder’s premature Motion and filing thus precludes significant parties from protecting their interests in this important matter. Those who have been included as Respondents are being forced to respond before otherwise being required to appear, and those who are interested but unnamed parties with confidential material subject to Boulder’s proposed Motion will have no opportunity to respond at all. The Court should therefore deny Boulder’s Motion until all of these parties have an opportunity to weigh in and protect their interests here or in the PUC proceedings. CONCLUSION PSCo respectfully requests that the Court deny Boulder’s Motion so the Parties may have the opportunity to address with the PUC how the highly confidential and confidential information from those proceedings will be handled in this case. Doing so would prevent Boulder, PSCo and this Court from running afoul of the PUC’s confidentiality orders and allow all interested parties an opportunity to address the best way to protect the confidential information that will necessarily be a part of these proceedings. PSCo has filed a Proposed Order consistent with this approach. DATED this 15th day of July, 2019. FAEGRE BAKER DANIELS LLP /s/ John R. Sperber John R. Sperber, Atty. Reg. No. 22073 Attorneys for Respondent Public Service Company of Colorado 11 CERTIFICATE OF SERVICE The undersigned certifies that on July 15, 2019, a copy of the foregoing Response to Motion for Protective Order was served on the following by the methods listed below: Attorneys for Petitioner, City of Boulder: Office of the Boulder City Attorney Thomas A. Carr Kathleen E. Haddock P.O. Box 791 Boulder, CO 80306 carrt@bouldercolorado.gov haddockk@bouldercolorado.gov ( ) First Class Mail ( ) Hand Delivery ( ) Overnight Delivery (X ) CCES ( ) E-Mail Hamre, Rodriguez, Ostrander & Dingess, PC Donald M. Ostrander Richard F. Rodriguez 3600 S. Yosemite Street, Suite 500 Denver, CO 80237 dostrander@hrodlaw.com rrodriguez@hrodlaw.com ( ) First Class Mail ( ) Hand Delivery ( ) Personal Service ( ) Overnight Delivery (X ) CCES ( ) E-Mail /s/ Pamela Hollen Pamela Hollen Senior Paralegal EXHIBIT A BEFORE THE PUB LIC UTIL ITIE S COMMISSION OF THE STATE OF COLORAD O PROCEEDING NO. 15A-0589E IN THE MA TIER OF THE APPLICATION OF THE CITY OF BOULDER, COWRAD O FOR APPROVAL OF THE PROPOSED TRAN SFER OF ASSETS FROM PUBLIC SERVICE COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND RELIEF UNOPPOSED MOTIONS FOR APPROVAL OF MODIFIED DISCOVERY PROCEDURE S, APPROVAL OF EXTRA ORD INAR Y PROTECTION FOR HIGHLY CONFIDENTIAL INFORMA TION, WAIVE R OF THE COMMI SSION'S DATA PRIV ACY RUL ES, AND TO WAIVE RE SPONSE TIME E = ! en = = ·- - ,_ ... I ... c.:, = a. = ,:s I! = - = c.:, The City of Boulder (the "City" or "Boulder"), by and through its undersigned counsel and pursuant to Commission Rules 1400 and 1003, respectfully requests that the Colorado Public Utilities Commission ("Commission") (a) approve modified discovery procedures as set forth in the attached Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior to Filing Second Supplemental Application ("Agreement") 1 to govern discovery prior to filing of a supplemental application, (b) designate the information produced by Public Service Company of Colorado C'Public Service") pursuant to the Agreement as highly confidential and provide extraordinary protection for that information, ( c) grant a limited waiver of certain of the Commission's Data Privacy Rules, 4 CCR 723-3-3026 et seq to, pursuant to the Agreement, allow Public Service to produce information and for that information to be used, and ( d) waive response time on these Motions as the relief requested is unopposed. The parties to this proceeding other than the City are: the Boulder Chamber of Commerce (the "Boulder Chamber"), CF&I Steel, LP, d/b/a Evraz Rocky Mountain Steel ("Evraz"), Climax 1 The Agreement has been reached between the City, Public Service, the Colorado Office of Consumer Counsel ("OCC"), IBM, Inc. ("IB M"), Regents of the University of Colorado ("CU" or the "U niversity"), and Trial Staff of the Commission ("Staff") (collectively the "Parties to the Agreement"). The Agreement is included with this Motion as Attachm ent A. 1 4095365.1 Molybdenum Company ("Climax "), the OCC, IBM, Leave BoCo Out, Public Service, the University, Tri-State Generation and Transmission Association, Inc. ("Tri-State"), and Staff (co llec tively th e "Parti es to the Pro ce eding "). Poud re Valley Rural Electric Association, Inc. ("PVRE A ") and U nited Power, Inc. ("United Power") are participating in the proceeding as . . am icus cun ae. Th e Parti es to th e Pro ceeding's positions on these M otions ar e as fo llow s: Motion for Motion for " approval of Motion for waiver of the Motion to waive modified extraordin ary Commis sion's response tim e di scovery protec ti on D ata Privacy proc ed u res Ru les B oul d er C ham ber of N o Position No Position No Position2 No Position C omm erce CF &I Steel, N o Position N o Position N o Position N o Position L .P ./E vr az C lim ax Moly bd en um N o Position N o Position N o Position N o Position C omp an y IB M Support Support Support N o Position L eave B oC o No Position No Position N o Position N o Position O u t O ffi ce of C on su m er Support Support N o Position N o Position C ou nse l P u bli c S ervi ce Support Support N o Position N o Position T ria l S taff Support Support N o Position N o Position T ri-Sta te N o Position N o Position N o Position N o Position U Diversity of Support Support Support N o Position C olorad o 2 Th e Boulder Chamber takes no position on the request for relief The Boulder Cha mber also notes that it cannot provide consent under the relevant rules or speak on behalf of any of its individua l mem bers who currently rely on the rules in question for protection of their energy use data. In the absence of this authority, the Boulder Ch amber expresses it conce rn about the impacts of a potential waiver of energy use data privacy righ ts for our members and other Boulder businesses whom are not parties to this proceeding and the threat it poses of exposing their sensitive business inform ation that one might derive from access to such energy use data. 2 In support of these M otions , Boulde r states as follows: I. BACKGROUND 1. The City initiated this proceeding to request Commission authorization for the transfer of assets from Public Service to Boulder so the City can operate a municipal electric utility. By Decision No. CIS-1360-1, dated December 30, 2015, the Commission granted Boulder's Motion for Leave to Supplement its Application and leave to file a Second Supplement. In that Order, the Commission stated that the Second Supplement, "must contain sufficient information and evidence to demonstrate the reliability and safety of the resulting network and the reasonableness of the resulting costs to Public Service and its ratepayers." Further, the Commission granted Boulder's request to conduct discovery and extended that opportunity to all Parties to the Proceeding in a manner consistent with the Commission's rules. 2. In order to conduct discovery in an efficient manner, the Parties to the Agreement have agreed on modified discovery procedures to govern discovery prior to the City filing its Second Supplement 3. Additionally, the Parties to the Agreement have agreed that certain information must be provided to allow the City to prepare its Second Supplement. As described below, the information that Boulder needs, and Public Service has agreed to provide, is highly confidential. And, in addition to being highly confidential, some of the information required to prepare Boulder's Second Supplement is protected by the Commission's Data Privacy Rules. 4. To address these issues, the City submits these Motions requesting an order from the Commission (a) approving modified discovery procedures as set forth in the Agreement to govern discovery prior to filing the Second Supplement, (b) designate the information produced by Public Service pursuant to the Agreement as highly confidential and provide extraordinary protection for that information, (c) grant a limited waiver of certain of the Commission's Data 3 Privac y Rules pursuan t to the Agreement and allow Public Service to produce information and for that information to be used, and ( d) waive response time on these Motions as the relief requested is unopposed. Each of these requests is detailed below. II. MODIFIED DISCOVERY PROCEDURES 5. The Parties to the Agreement have agreed to modified procedures that, if approved, would govern discovery in this proceeding prior to the time the City files its Second Supplement. It is within the Commission's authority to approve such modified discovery procedures. 3 6. The City is requesting certain information from Public Service as more fully described in the Agreement in order to comply with Decision No. C15-1360-I's requirement that Boulder's supplemental application "contain sufficient information and evidence to demonstrate the reliability and safety of the resulting network and the reasonableness of the resulting costs to Public Service and its ratepayers." 7. Boulder respectfully requests that the Commission approve the modified discovery procedures set forth in the Agreement. ID . ID G HL Y CONFIDENTIAL INFORMATION AND REQUEST FOR EXTRAORDINARY PROTECTION 8. The City requests that the information to be provided pursuant to the Agreement be given extraordinary protection because the nature of the data being requested involves critical energy infrastructure and includes trade secrets, privileged information, and confidential commercial, financial, engineering, geological, or geophysical data. 9. The specific information to be provided pursuant to the Agreement is in Section II 3 Commission Rule 1405(a)(1II) provides that "[ujnless the Commi ssion orders otherwise, the Colorado Rules of Civil Procedure incorp orated by reference govern discovery." Simi larly, Commi ssion Rule 1405(e) provides that the deadlines for discovery established in Commi ssion's Rule 1405(b)-(d) "are subject to modification by agreement of the person propounding discovery and the person upon whom the discovery is propounded." 4 of the Agreem ent and ha s, fo r safe ty and security reas ons, been redac ted on the public copy of the Agreem ent. A Confi den tial unr edac ted copy of the Agree m ent is being filed contem pora neous ly with this pleadin g. 10. Th e inform at ion that Public Serv ice has co mmi tted to provide pursuant to the Agreement should be afforded extraordinary protection as highly confidential. Detailed information regarding Public Service's distribution system should not be released because of concerns about security, economic security, and public health and safety. Indeed, for these very reasons, Public Service carefully controls access to information of this nature. In response to Public Service's concerns, the Parties to the Agreement have agreed that this information merits extraordinary protection as highly confidential and that the protections afforded confidential information under the Commission's rules are insufficient. 11. While no customer names, addresses, or billing information is being provided by Public Service to the City pursuant to the Agreement, the information described in Section II of the Agreement, subparagraphs I, 2, 4, 5 and 7, have aggregated customer information by areas or groups and the item described in Section II, subparagraph 5 of the Agreement includes dots depicting customer premises. Boulder is requesting this information to comply with the Commission's order to demonstrate the reliability and safety of the resulting network if the Commission approves Boulder's supplemental application. But extraordinary protection for this information as highly confidential is appropriate because the inadvertent disclosure of any of this sensitive information could significantly damage the relationship of trust that Public Service has developed and strives to maintain with its customers. This information, although most of it is aggregated by areas or groups, is almost certainly considered private by Public Service's residential customers, highly proprietary and competitively sensitive by Public Service's 5 business cust omers, and has signi ficant value for third-parties that use energy usage information for business purpo ses. For these reas ons, the Parties to the Agreement believe this informa tion meri ts extraordinary protection as highly confi dential and that the protection afforded confidential informa tion under the Comm ission's rules is ins ufficient. 12. All of the highly confidential inform ation to be provided pursuant to the Agreement implicates system safety and security as well as trade secrets, privileged inform ation, and confi dential commercial, fina ncial, engin eering, geological, or geophysical data. Therefore, disclosure of this inform ation could cause irreparable harm to Public Service now, as well as to a future electric utility operated by the City. Given the natur e of this informa tion, the Commission's rules governing confi dential inform ation are insufficien t to provide adequa te protection for the informa tion at issue. Because the inform ation being provided is appropriately considered to be highly confi dential under the Co mm ission's rules, the Part ies to the Agreement are asking for an order from the Commission lim iting access to this information to a "reasonable number of attorneys" and a "reasonable number of subject matter experts" representing a party to this proceeding. The Part ies are furt her asking that the Or der incorporate, by reference the term s of the Agreement, including but not limi ted to, the confidentiality provisions in Section V, the use restrictions in Section VII I, and the securi ty provisions in Section IX of the Agreement, and require all persons accessing this informa tion to sign a non-disclosure agreement acknowled ging that they have read and agree to comply with the confidentiality and securi ty term s of the Agreement, the term s of an Order in this proceeding affording extraordinary protection, and the term s listed in Comm ission Rule 3614(b) (except as otherw ise provided in the Commi ssion's rules as to Comm ission Staff and the Office of Consumer Couns el). A proposed form of the Non-Disclosure Agreement has been filed sim ultaneously with these Motions. 6 13. Exhibit 1 to the Agreement is being filed on a Confidential basis and is a chart that identifies all of the people who will be provided access to the highly confidential informati on. Exhibit 1 to the Agreement also describes the information being provided by Public Serv ice, the derivatives of suc h inform ation, and the designate d persons for each party who may view each cate gory of informa tion. 14. M ost of the highly confidential informa tion has to be prepared by Public Service and Public Service needs the Comm ission's decision on the data privacy portion of this Motion before it can complete the materials (so that Public Service knows what can and cann ot be included). Therefore it would be impossible or impracticable to include all of the highly confidential information in an exhibit with this Motion. 15. The proposed duration of the highly confidential treatment discussed herein is fully set forth and explained in Section VIII of the Agreement. IV. WAIVE R OF DATA PRIVACY RULES 16. As explained above, while no customer names, addresses, or billing information is being provided by Public Service to the persons identified in Exhibit 1 pursuant to the Agreement, the Highly Confidential Information necessarily include customer information largely aggregated by areas or groups but, nevertheless, with sufficient granularity as to implicate the Commi ssion's Data Privacy Rules. 17. This data is critical to the City's ability to prepare a supplemental application that meets the Comm ission's requirements. Put simply, it is impossible to confirm that the City's separations plans will preserve the reliability and safety of the network without access to detailed information about the network and customer aggregated loads on the network. 18. However, Public Service's ability to provide the data to the persons identified in Exhibit I is governed by the Comm ission's Data Privacy Rules, which, among other things, 7 prohibit a utility from (i) disclosing customer da ta (Rule 3027(b)); (ii) ma king such disclosure un less the customer or a third party ac ting on beha lf of a cus tomer submits a sign ed co ns ent to disclose customer data form tha t has bee n exec uted by the cus tomer of reco rd (Rule 3032(a)); and (iii) providing aggregated data if the aggregation includes fewer than 15 customers or any single customer's customer data comprises 15% or more of the total customer data aggregated per customer class (the "15/15 Rule") (Rule 3033(b)). 19. While this data (other than the item described in Section II, subpargraph 5 of the Agreement) will be aggregated, it is certain some of the aggregated data that will be provided either (a) reflects the data of fewer than 15 customers, or (b) reflects the data of one or more customers whose usage comprises at least 15% of the aggregated data. Given the typical configuration of facilities, Public Service expects a significant number of customers would be triggered by a 15/15 analysis. With regard to the item described in Section II, subpargraph 5 of the Agreement, that information will not be aggregated, but will not include any information about each customer other than the fact that a customer exists who is served off of a particular substation. That information will be essential to determine the number of customers within and outside the City whose service may be impacted by a change in the network in a particular location. 20. Therefore, the City requests a limited waiver of the Data Privacy Rules (specifically Rules 3027(b), 3032(a) and 3033(b)) to allow the data described above and in more detail in the Agreement to be provided by Public Service to the persons at each level described in Exhibit 1 (including any persons added to Exhibit 1 by consent of the Parties or Commission 8 order as provided in the Agreement and who execute the non-disclosure agreement) for each to use as set forth in Exhibit 1 and the Agreement. 4 2 L Notwithstanding the requested waiver, it is critical to note that the Parties to the Agreement agree that the information disclosed by Public Service under the Agreement should be considered highly confidential information and be fully protected under the Commission's confidentiality rules. The Parties to the Agreement fully appreciate the need to keep even aggregated customer data private and confidential. 22. The proposed duration of the requested limited waiver of the rules discussed herein is fully set forth and explained in Section VIII of the Agreement. 23. While there is no statute or rule requiring customer notice of this requested waiver, the City understands that the Commi ssion may desire that customers in and around Boulder have notice of the requested waiver in addition to the notice already provided of the City's application. To the extent the Commis sion decides to require such notice, the City requests that the Commission indicate that in its decision regarding the motion to waive response time and that the Commission further indicate whether the following form of notice is acceptable: On July 7, 2015 the City of Boulder ("City") filed an Application with the Colorado Public Utilities Commi ssion ("Commission") for approval of a proposed transfer of assets from Public Service Company of Colorado ("Public Service") in conjunction with the City's efforts to create a municipal electric utility. The Commission, by Decision No. Cl5-1360, has permitted the City to file a supplement to that Application. In that Order, the Commission stated that the supplement, "must contain sufficient information and evidence to demonstrate the reliability and safety of the resulting network and the reasonableness of the resulting costs to Public Service and its ratepayers." In order to comply with the Commission's order, the City has requested certain information from Public Service about electrical facilities and how they are used in and around the City. That information does not include any individual customer names, addresses, or 4 Staff does not need a waiver of the Data Privacy Rules to have access to the informa tion since it has access to all utility data pursuant to C.R.S. § 40-6-106 and Commi ssion Decision No. ClS-0571. 9 billin g informa tion, but th e info rma tion sought do es in cl ud e da ta about electric us age and load s on certa in elec tr ic fa cilities ( fo r exa m ple, lines and tran sfo rm ers) th at serv e custo m ers in and aro und Boulder and other inform ation that implicate s th e C omm ission's D ata Pri vacy Rules. U nder the D ata Privac y R ules, the informat ion sought by B oulder about the elec tric fac ilities that serv e you m ay not be discl osed by Public Serv ice to the C ity or oth er part ies to th e pro cee ding w ithout eith er Co mm ission appro val or Public Serv ice receivin g your co ns en t. Th e C ity has filed a M otion w ith the C omm ission see ki ng a w aiver of Rule 3033 fo r the purp ose of receiving the aggregated inform ation from Public Serv ice. If the C ity 's M otion is gr anted, Public Serv ice w ill pro vide the requ ested data to ce rta in specifically identified engi nee rs w orkin g w ith the C ity and potentially other specified persons w orkin g fo r other parties to the pro ce eding befo re the C ommi ssion. Th ose persons w ill al l be req uired to keep the informa tion as hi ghl y co nfi dential. N o persons exce pt th ose specifically authoriz ed by the C omm ission w ill have acc ess to the in fo rma tion. Th e C ommi ssion has bee n as ked to cons ider w hether to gr an t th e requested w aiver at its fir st w eekl y m eetin g at leas t 10 da ys fr om [INSERT THE DATE THE FIRS T NOTICE IS PUBLISHED]. Any person may file a written comment or objection with the Commission regarding this proposed Motion for a waiver of Rule 3033. The Commission's mailing address is 1560 Broadway, Suite 250, Denver, Colorado, 80202 and their e-mail address is dora puc complaints@state.co.us. The Commission will consider all written comments and objections submitted prior to the weekly meeting on the Motion. Any person desiring information regarding if and when hearings may be held on the Motion shall submit a written request to the Commission or, alternatively, shall contact the External Affairs section of the Commission at its local number of (303) 894-2070 or toll-free phone number (800) 456-0858. 24. If the Commission decides that such notice should be issued, Boulder commits to submit the notice to the Boulder Daily Camera, a newspaper of general circulation serving the Boulder area, to be published in the legal notices section of the paper for one day in each of two successive weeks. As there is no statute or rule requiring notice or any specific timeframe for such notice, the City requests that the Commission approve a 10 day notice period. V. WAIVER OF RESPONSE TIME 25. All of the Parties to the Proceeding have reviewed and commented on these Motions and the relief requested herein is supported or unopposed. Therefore, the City respectfully requests that the Commission waive response time to these Motions so that the 10 Co mm ission may act upon the requests herein as exped itiously as possible. WHE RE FORE , the City respectfully requests an order from the Commission (a) appro ving modified discovery proce dures as set forth in the Agreement to govern discovery prior to filing of a supplemental ap plication, (b) designa te the informa tion produced by Public Service pursuant to the Agreement as highl y confidential and provide extrao rdina ry protection for that informa tion, (c) grant a limited waiver of certain of the Comm ission's Data Privacy Rules pursuant to the Agreement and allow Pu blic Service to produce information and for that information to be used , and ( d) waive response time on these Motions as the relief requested is unopposed. Finally, the City requests that the Comm ission schedule tim e to consider these Motions at the first weekly meetin g followin g the completion of the notice period discussed above in the motion for waiver of the Data Privacy Rules. Respectfu lly submitted this 16th day of March 2016. CITY OF BO UL D ER By: Isl Debra S. Kalish Debra S. Kalish, # 18858 Sr. Assistan t City Attorney Thomas A. Carr, #4 2170 City Attorney City of Boulder Box 791 1777 Broadway Boulder, CO 80306-0791 Telephone: (303) 441-3020 kalishd@bouldercolorado.gov carrt@boulderco lorado.gov 11 HOLLAND & HART LLP Robert M. Pomeroy, #7640 Thorvald A. Nelson, # 24 715 Michelle Brandt King, # 35048 Nikolas S. Stoffel, #44815 6380 S. Fiddlers Green Circle, Suite 500 Greenwood Village, CO 80111 Telephone: (303) 290-160 l rpomeroy@hollandhart.com tnelson@hollandhart.com mbking@hollandhart.com nsstoffel@hollandhart.com ATTORNE YS FOR THE CITY OF BOUL DER 12 CERTIFI CATE OF SERVICE PR OCEEDING NO. 15A-0589E I hereby certify that on this 16th of March 2016, a copy of the foregoing UNOPPOSED MOTIONS FOR APPROVAL OF MODIFIED DISCOVERY PROCEDURES, APPROVAL OF EXTRAORDINARY PROTECTION FOR HIGHLY CONFIDENTIAL INFORMATION, WAIVER OF THE COMMISSION'S DATA PRIVACY RULES, AND TO WAIVE RESPONSE TIME was e-filed with the Colorado Public Utilities Commission, and a copy was electronically served to the following: *Matthew S. Larson mlarsont@wbklaw.com Boulder Chamber of Commerce * Adam M. Peters aneters@.wbklaw.com Boulder Chamber of Commerce John Taver iohn. taverlo)boulderchamber.com Boulder Chamber of Commerce "Richard L. Fanyo rfanvo@duffordbrown.com CF&I/Climax *Mark T. Valentine mvalentinet@duffordbrown.com CF &I/Climax "Cesilie J. Garles cgarles@duffordbrown.com CF&I/Climax *Nancy Schartz nschartz(@.duffordbrown.com CF&I/Climax Randolph W. Starr randveasrarrwestbrook.com PVREA *Thomas J. Dougherty tdo ,~ ~ -~· L 1@lrrlaw.com Tri-State Gregory E. Bunker s;rreQ:orv.bunkert@state.co .us occ Thomas Dixon thomas.dixon@state.co.us ace Ron Fernandez ron.fernandezt@state.co.us occ Tim Villarosa tim. vi1laros::it@state.co. us occ Cindy Schonhaut cindv.schonhaut@state.co.us occ Ingrid Dietzman inmid.dietzmanlmstate.co.us occ Chere Mitchell chere.mitchellenstate.co. us occ *Ray Gifford rniffordimwbklaw.com Leave BoCo Out/IBM *Catilin M. Shields cshields@wbklaw.com Leave BoCo Out/IBM John M. Dorsey idorsev6224tmmsn.com Leave BoCo Out Jacquelyn Thaler ithalereaus. ibm.com IBM Ann C. McEvilv amcevilv<@us.ibm.com IBM *Karl F. Kumli, III karllctmdietzedavis.com CU Boulder *Mark D. Detsky mdetskv@dietzedavis.com CU Boulder *Gabriella Stockmayer ostockmaver@.dietzedavis.com CU Boulder *Julie A. Wolfe Juliet'mdietzedavis.com CU Boulder *Robin W. Kube robkube@dietzedavis.com CU Boulder Delia Patterson doattersonlmnublicnower.orn: APPA Randolph Elliott relliottimnublicnower.orn APPA William M. Dudley bill.dudlev@xcelenerl!V.com Public Service Robin L. Kittel robin.kittel@xcelenern:v.com Public Service Judith M. Matlock iudith.matlockeadaslaw .com Public Service * Anne K. Botterud anne.botterudeacoac. zov Staff *Dave Nocera dave.noceraeacoaz. Q:OV Staff *Todd Lundy toddJundv<@state.co.us Commission Counsel Gene Camp gene.camn(@state.co. us Trial Staff 13 Sharon Podein sharon.oodein@state.co.us Trial Staff Stephen Brown steohen.brownlmstate.co. us Trial Staff Ron Davis ron.daviseastate.co.us Advisory Staff Ellie Friedman ellie. friedman(@~tate.co. us Advisory Staff Paul Caldara oaul.caldaraeastate.co.us Advisory Staff Jessica Lowrey Jessica.lowrevrdtstate.co. us Advisory Staff Mark W. Williams mwilliams@shermanhoward.com United Power Robert Pomeroy momerov1mhollandhart.com City of Boulder Heather Bailey bailevh@bouldercolorado.gov City of Boulder Debra Kalish kalishdeabouldercolorado.cov City of Boulder Lisa Thompson thomosonleabouldercotorado.eov City of Boulder Thorvald A. Nelson tnelson@hollandhart.com City of Boulder Michelle B. King mbkinlI@holiandhart.com City of Boulder Nikolas S. Stoffel nsstoffel1mhollandhart.com City of Boulder Adele C. Lee aclePimhollandhart.com City of Boulder Patti Penn ooennlmhollandhart.com City of Boulder *Denotes persons eligible to receive confidential proprietary inform ation pursuant to the Commi ssion's rules on confidentiality, 4 CCR 72 3-1100 -1102 sl Sarah Bennet 14 Attachment A Agreement on Discovery Procedures Proceeding No. 15A-0589E March 16, 2016 Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior To Filin g Second Supplemental Application Proceeding No. 15A-0589E Public Service Company of Colorado ("PSCo"), the City of Boulder ("City"), the Colorado Office of Consumer Counsel ("OCC"), IBM, Inc. ("IBM"), Regents of the University of Colorado ("CU" or the "University"), and Trial Staff of the Colorado Public Utilities Commission ("Staff') ( collectively the "Parties") have reached an Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior To Filing Second Supplemental Application in Proceeding No. 15A-0589E ("Agreement"). That Agreement is as follows: I. Engineering modeling prior to supplement During a discovery conference between PSCo and the City, the issue of modeling was discussed and PSCo informed the City that, in anticipation of litigation at the Public Utilities Commission ("PUC" or "Commission") and/or in a condemnation proceeding, PSCo had been working with a Synergi Power System Model to model certain electric facilities serving areas in and around the City. PSCo indicated that the model it was using was not a current snapshot in time and was considered by PSCo to be privileged. PSCo and the City believe that there are multiple benefits to having the Parties to this proceeding use the same model as a starting point so as to allow for reasonable comparisons between alternative approaches. For that reason, PSCo has agreed to develop and provide to the City and to Parties who acquire a Synergi license and sign the appropriate non-disclosure agreement for highly confidential information a new baseline model within thirty (30) days following issuance of the Commission's orders approving these modified discovery procedures, as well as rendering decisions on the issues of confidentiality and data privacy. The intent is that PSCo, the City, and any other Parties who elect to do their own modeling will use the new model in preparing any proposed separation plan, or in critiquing the separation plan developed by the City. On the date PSCo provides the new baseline model, PSCo will also provideparties the other information described in Section IT of this Agreement subject to the confidentiality and data privacy procedures in Sections V and VI respectively of this Agreement. After PSCo provides the model, PSCo will advise if it discovers any errors or omissions while using the model with the understanding that the Parties will do the same thing so as to accomplish the objective of avoiding disputes about the baseline model itself during the ongoing Commission proceeding. By agreeing to the use of the Synergi model as set forth in this Agreement, the Parties are not waiving their right to argue about the model results or that assumptions built into the model may not adequately address particular issues or concerns. 4100761.1 Attachment A Agreement on Discovery Procedures Proceeding No. 15A-0589E March 16, 2016 II. Initial information to be provided by PSCo to the City and parties signing appropriate non-disclosure agreements prior to supplement Definition Specific information to be provided by PSCo ("Initial Information"): 2 Attachment A Agreement on Discovery Procedures Proceeding No. 15A-0589E March 16, 2016 III. Follow-up modeling information may be requested of PSCo prior to supplement The City intends that the above list be comprehensive for the purposes of developing its plan for physically separating its system from the PSCo system. However, as the City works to develop its physical separation plan, it is possible that the modeling information listed above may be insufficient. For example, the City may desire to obtain similar system information regarding one or more back-up feeders. Alternatively, the City may also have questions about the information provided. If such additional information is requested or follow-up questions are asked, the City and PSCo will meet and discuss whether and the extent to which such information will be provided or questions answered and the time it would take for PSCo to comply with the request or respond to the questions posed. If the disclosure of additional 3 Attachment A Agreement on Discovery Procedures Proceeding No. 15A-0589E March 16, 2016 information would include the disclosure of customer data as defined in the Comm ission's data privacy rules and such disclosure is outside the scope of any previously issued Commi ssion decisions in this proceeding concerning data privacy, PSCo will not release such data without first obtaining customer authorization or upon order of the Commi ssion. If such disclosure of customer data includes the customer data of any party to this proceeding, PSCo shall notify the City, and the City shall confer with all Parties to mutually agree on which individuals in Exhibit 1 may access such additional informa tion. PSCo reserves the right to decline any such request or ans wer additional questions. The Parties reserve the right to raise any dispute regarding additional informa tion requests with the Commi ssion for resolution. IV. Other discovery generally Th e Part ies agr ee that until the City files its Supplem ent to th e Application, each party ma y pro poun d no m ore than thirty (30) formal discovery requests to any other party, with each subpart of a request counted as a singular request, and that the time to respond shall be extended to thirty (30) days. Any party responding to discovery during this period has a continu ing obligation to provide regular updates to these discovery requests and will provide any such supplemental response(s) every 15 days after providing its initial response to any discovery request if additional information is available, if practicable, and in no event later than 30 days after providing its initial discovery response and every 30 days thereafter. Responses and any supplemental responses to discovery requests shall be provided by the party responding to the discovery to all Parties. The Parties acknowledge that PSCo has requested that Parties refrain from propounding discovery on it until PSCo has provided the model to Boulder and others who have sign ed appro priate non-dis cl osure agr eem ents. After Boulder files its Supplement to its Application, the discovery procedures codified in 4 CCR 723-1-1405 shall apply unless otherw ise authoriz ed by the Commi ssion. V. Confidentiality Th e na tur e of the da ta bein g requested in cludes tr ade sec rets , pri vileged information, and confi dential comm ercial, fina ncial, engin eering, geologi cal, or geophysical da ta. Th e proposed di sco very pro cess therefo re im plicates safe ty and security issues and req uirem ents which is why the Parties agr ee tha t th e inform ation above to be pro vided by PSCo shall be deem ed H ighly Co nfi dential. L ikew ise, info rm ation of a simi la r typ e or natu re developed by oth er Parties shall also be Highl y Confi dential . For exam ple, any Synergi Pow er Systems m odel incorp ora ting a separation plan developed by the C ity by m odifyi ng PSCo's baselin e m odel shall be Highly Confi dential. Access to th e H ighly Confi dential info rma tion ide ntifi ed above shall be limi ted as described on the attached chart, entitled "Fram ew ork fo r E xchan ge an d M ana gem ent of H ighly C onfi dential Info rm ation" (E xhi bit 1 ). E xh ibit 1 de scri bes the inform ation being pro vided by PSCo, the derivatives of such inform ation, and the de signated persons fo r each party who ma y view each category of in fo rm ation. A ll persons afforded acc ess to H ighl y C onfi dential inform ation shall in dividua lly sign an appro priate non-discl osure agr eem en t (except as otherw ise pro vided in the Comm ission's ru les as to the Sta ff of the C ommi ssion an d the O ffi ce of C ons um er Couns el). 4 Attachment A Agreement on Discovery Procedures Proceeding No. 15A-0589E March 16, 2016 Exhibit 1 is intended to describe the persons authorized to review the information specifically provided to the parties through this Agreement in advance of any supplemental filing by the City. If any party desires to modify, add to, or subtract from the list of persons authorized to review information as set forth on Exhibit 1, that party shall notify all of the Parties of the desired modification, addition, or subtraction in writing (which may include via e-mail). If all Parties consent to the change in writing (which may include via e-mail), the City shall file an updated Exhibit 1 with the Commission. If there is any disagreement or objection, the party seeking to modify Exhibit 1 may ask the Commission to approve a modification to, addition to, or subtraction from Exhibit 1. Exhibit 1 does not necessarily represent the list of persons authorized to review other Confidential or Highly Confidential information submitted or exchanged following any supplemental filing. Public Service agrees to deliver the one line substation diagrams and the 8760 data by an encrypted email or other controlled access mechanism and, to the extent practicable, to also deliver all of the other Highly Confidential data through controlled access mechanisms such as a secure FTP site or encrypted e-mail or other controlled access mechanisms. Following the approval of this Agreement, Public Service will confer with customer intervenors concerning Public Service's proposed method(s) of delivering the Highly Confidential data. Thereafter, no later than ten days prior to the end of the 30-day period, Public Service will give notice to all parties of Public Service's proposed method(s) of delivering the Highly Confidential data and will attempt to address any concerns raised by the parties, provided, however, that Public Service retains the right to make the final decision regarding how it delivers its Highly Confidential data. . The City shall file an appropriate motion for extraordinary protection seeking Commission approval for these procedures. VI . Data Privacy As discussed above, individual customer load or usage information shall not be provided by PSCo to any third party without consent of the customer or waiver of the relevant dat.a privacy rules by the Commission. Certain aggregated data can be provided under the data privacy rules without consent or waiver (i.e., as long as the 15/1 S rule is not triggered) but, given the typical configuration of facilities, the 15/15 rule would be triggered for a large number of customers. Further, limited customer premise information described in Section II, subparagraph S above, as well as the information included in Section II, subparagraph 4 above, is being provided pursuant to this agreement. The provision of this information implicates the Commission's dat.a privacy rules. The City agrees to file an appropriate motion for waiver of the Commission's dat.a privacy rules to seek Commission approval for this otherwise protected information so that the information may be provide-el to the parties to the proceeding under the Highly Confidential procedures 5 Atta chment A Agr eement on Discovery Proc edures Proceed ing No. 15A-0589E March 16, 2016 discussed above. The City's Motion for Waiver will be filed concurrently with the Motion for Approval of the Stipulated Modified Discovery Proced ures, consistent with the terms of this Agreement, as well as the Motion for Extraordinary Protection referenced above. The City also agrees to provide public notice of the request for a waiver if requested by the Comm ission. VIL Privil ege The Parties agree that PSCo' s provision of the above-referenced Model and the other documents and informa tion described in Section II above in this proceeding does not constitute a waiver of any claims of privilege or confidentiality as to any other information, nor does PSCo 's provision of the model and the other documents and information described in Section II above pursuant to the discovery rights granted in Decision No. ClS-1360-I constitute a waiver of any rights under condemna tion law to compensation for PSCo's proprietary informa tion, including proprietary informa tion obtain ed through discovery in this proceeding. The Parties reserve all claims and defenses associated with the condemnation proceedings and the compensation to be paid therein. VIII . Use of highly confidentia l and confidential informa tion in other judicial or regu latory proceedings During this proceeding, as required by Commi ssion Rule 1 lOl(h), all Confidential and Highly Confidential Informa tion ma de available by a party shall not be used or disclosed for purposes of business or competition, or for any other purpose other than for purposes of Proceeding No. 15A-0589E. Within the pendency of this Proceeding No. 15A-0589E, a Party may request by written motion to the Commi ssion a limi ted waiver of Rule 1 lOl(h) to permit identified Confidential and Highly Confidential informa tion produced in Proceeding No. 15A-0589E to be used in identified subsequent or concurrent civil or regulatory proceedings. Except as provided herein, or otherwise modified by the Commi ssion, the Commi ssion's rules and orders concernin g Confidential and Highly Confidential informa tion shall apply, including, but not limited to, the requirement that all Confidential and Highly Confidential informa tion (including notes and copies) be return ed. Notwithstanding anything herein to the contrary, the City and PSCo acknowledge that some Confidential and Highly Confidential informa tion in this proceeding may need to be used in other proceedings related to the City's efforts to municipalize its electric service. However, the City and PSCo acknowledge that it is difficult to know, at this time, the nature and extent to which Confidential and Highly Confidential information in this proceeding may be needed in other proceedings. Until the Commi ssion rules in this Proceeding on a request for a limi ted waiver of Rule 1 lOl(h) as provided in the preceding paragraph, the City may maintain all of the Confidential and Highly Confidential information provided by PSCo in this proceedin g. IX. Security The Parties shall take all necessary precautions to prevent the unauthorized access, use or disclosure of any Confidential or Highly Confidential Information provided to them or their agents. Confidential and Highly Confidential Informa tion must be: 6 Attachment A Agreement on Discovery Procedures Proceeding No. 1SA-0589E March 16, 2016 • Encryp ted while in transit and while at rest; • Stored only on encrypted devices belonging to the approved Party (no BYOD); • Processed only on secure computers and systems belonging to the approved Party (no third-party or cloud-based processing, provided, however, that the City may use Office 365 for the reasons described below); • Transmitted only through secure means, including password-protected, encrypted media and secure file transfers. The Parties shall prevent Confidential and Highly Confidential Informa tion from being stored on unencrypted media, from being transferred to any personal devices, and from being accessed by means of any channel or means that is not secure, including over public or open wireless networks. Any Party who learns or has reason to believe there has been a violation of these security provisions, an unauthorized access or use of Highly Confidential or Confidential Information, or a security breach involving any system housing Highly Confidential or Confidential Informa tion shall imm ediately notify the disclosing Party of the circums tances, and shall comply at its own expense with any reasonable requests made in furt herance of securin g or recovering the Highly Confidential and Confidential Informa tion. The City uses Office 365 and has a governm ent tenant agreement with Microsoft. Microsoft 365 is encryp ted and all information is stored on servers in the US. The governm ent tenant agreement includes special security provisions specifically for governm ental entities that deal in highly confidential informa tion daily. Because of the encryption and security built into the city's Office 365 agreement, the City may use Office 365. Public Service agrees to work with the Parties to address any questions and concerns about the logistics of complying with the above Security requirements. 7 EXHIBIT B D ec is io n N o . C l6 -0 3 3 6 -I BEFORE THE PUBLIC UTIL ITIE S COMMISSION OF THE STATE OF COLORAD O PROCEEDIN G NO. 15A-0589E IN THE MATT ER OF THE AP PLICAT ION OF THE CITY OF BOULDER, COLORAD O FOR AP PROVAL OF THE PROPOSED TRAN SFER OF ASSETS FROM PUB LIC SERVICE COM PANY OF COLORAD O TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND RELIEF. INTE RI M DECISION GRAN TING MOTION FOR APPROVAL OF MODIF IED DISCOVE RY PROCEDURE S, AP PROVAL OF EXTRA ORD INARY PROTECT ION FOR IDGHL Y CONFI DENTIAL INF ORMA TION, AND WAIV ER OF THE COMMI SSION'S DATA PRIV ACY RUL ES E = t;; =- en en = = ·- - ·- ... I ... c:.:» = a. = '= ea .. = - = c:.:» Mailed Date: April 19, 2016 Adopted Date: April 13, 2016 TAB LE OF CONTENTS I. BY THE COMM ISSION 2 A. Statement 2 B. Background 2 C. Findings and Conclusion .3 1. Highly Confidential Status .3 2. Limited Waiver of Data Privacy Rules 4 3. Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege.? IL ORD ER 8 A. It Is Ordered That: 8 B. AD OPTED IN COMMI SSIONE RS' WE EKL Y ME ETING April 13, 2016 8 B efo re th e P u b li c U tili ties C o m mi ssio n of th e S ta te of C o lo rad o Decision No. C16-0336-I PROCEEDING NO. 1SA-0S89E I. BY THE COMMISSION A. Statement 1. This Decision grants the Unopposed Motions for Approval of Modified Discovery Procedures, Approval of Extraordinary Protection for Highly Confidential Information, and Waiver of the Commission's Data Privacy Rules (Motion) filed by the City of Boulder (Boulder) on March 16, 2016. Consistent with the discussion below, we: (1) designate as Highly Confidential, information that Public Service Company of Colorado (Public Service) will provide pursuant to an Agreement on Discovery Procedures; (2) grant a limited waiver of the Commission's Data Privacy Rules; and (3) approve an Agreement on Discovery Procedures that modifies the Commission's established discovery procedures. 1 B. Background 2. In this Proceeding, Boulder requests the transfer of certain distribution assets from Public Service to create a municipal electric utility. If Boulder wishes to acquire Public Service's assets, the Commission must review and approve the acquisition to ensure that ratepayers outside of Boulder are not harmed. 3. In December 2015, the Commission dismissed part of Boulder's initial application for the transfer of assets as violating the doctrine of regulated monopoly, and allowed Boulder to file a Supplemental Application.' The Commission stated that the Supplemental Application "must contain sufficient information and evidence to demonstrate the reliability and 1 By Decision No. Cl6-0244-I, issued March 24, 2016, the Commi ssion waived response time to this motion and ordered Boulder to provide newspaper notice of its request for waiver of certain data privacy rules. 2 See Decision No. CIS-1360-I, issued December 30, 20 15. 2 B e fo r e t h e P u b li c U t i l it i e s C o m m i s s i o n o f t h e S t a te o f C o t o ra d o D e ci s i o n N o . C 1 6 -0 3 3 6 -I P R O C E E DI N G N O . I S A -0 5 8 9 £ safety of the resulting network and the reasonableness of the resulting costs to Public Service and its ratepayers. "3 4. The Commission also granted Boulder's request to conduct discovery before it files a Supplemental Application. The Decision stated that the Commission is receptive to motions on additional or alternative discovery procedures. 4 According to the Motion, in order to develop a Supplemental Application that satisfies the Commission's order, Boulder has requested certain information about Public Service's electric system in and around Boulder. 5. According to the Motion, Public Service has agreed to provide the requested information pursuant to the "Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior to Filing Second Supplemental Application" 5 (Agreement). The Agreement and Exhibit 1 to the Agreement list the information that Public Service will provide and the specific individuals in each party that will have access to the information. C. Findings and Conclusion 1. Highly Confidential Status 6. The Motion requests that the Commission grant Highly Confidential status to all of the data, information, and the model that Public Service intends to provide pursuant to the Agreement. According to the Motion, "the nature of the data being requested involves critical energy infrastructure and includes trade secrets, privileged information, and confidential commercial, financial, engineering, geological, or geophysical data.:" Additionally, the detailed distribution information requires extraordinary protection to ensure the security, 3 Id. ,r 42. 4/d.'!143. 5 Motion at p. I. 6 Motion, ,r 8. 3 Before the Public Utilities Commission of the State of Colorado Decision No. Cl6-0336-I PROCEEDING NO. 15A--0589E economic security, and public health and safety. Public Service has agreed to provide the information in an encrypted format. 7. The Motion states that the Parties to the Agreement have agreed to the Highly Confidential status and to the limited disclosure of certain information, as described in Exhibit 1 to the Agreement. The Agreement notes that if any party wishes to modify, add to, or subtract from the list of persons authorized to review the information, that party must notify the other Parties, and the change will be subject to Commission approval. 8. Boulder has filed a proposed Nondisclosure Agreement as required by Rule llOl(b)(V) of the Rules of Practice and Procedure, 4 Code of Colorado Regulations (CCR) 723-1. 9. We find that the data and information that Public Service intends to provide pursuant to the Agreement require extraordinary protection to protect the safety and the security of the electric grid. We grant the request for extraordinary protection and highly confidential status to the information described in the Agreement. We also approve the Nondisclosure Agreement filed with the Motion. 2. Limited Waiver of Data Privacy Rules. 10. The Motion states that some of the data Public Service intends to provide includes customer information that is not sufficiently aggregated to comply with Rules 3027(b),7 3032(a),8 7 Rule 3027(b) states, "A utility shall not disclose customer data unless such disclosure conforms to these rules, except as required by law or to comply with Commi ssion rule." 8 Rule 3032(a) states, "Except as provided in this rule, paragraph 3027(b), rule 3030 [Access to Customer Data for the Provision of Regulated Utility Service], and rule 3031 [Local Governm ent Access to Customer Data from a Utility for Audit], a utility shall not disclose customer data to any third party unless the customer or a third party acting on behalf of a customer submits a paper or electronic signed consent to disclose customer data form that has been executed by the customer of record." 4 B ef o r e t h e P u b lic U tili t ie s C o m m is s io n o f th e S t a t e o f C o lo r a d o D e ci s i o n N o . C 1 6 -0 3 3 6--I P R O C E E D I N G N O . 1 5 A -0 5 8 9 E and 3033(b)9 of the Commission's Data Privacy Rules, 4 CCR 723-3. The Motion requests a waiver of these rules, which prohibit a utility from disclosing customer data, except in limited circumstances, without the customer's written consent. Rule 3033(b) (the 15/15 Rule) allows utilities to provide aggregated customer data without the customer's written consent if the aggregation contains at least 15 customers; and, within any customer class, no single customer's customer data comprises 15 percent or more of the total customer data aggregated per customer. 11. · According to the Motion, the data is critical to Boulder's ability to prepare a supplemental application demonstrating that its separation plan will preserve the reliability and safety of the network. As discussed above, the Motion also requests Hi ghl y Confidential status for all of the information provided pursuant to this waiver. 12. The Motion states that none of the information Public Service intends to provide will contain customer names, addresses, or billing information. Some of the information will be aggregated but will likely violate the 15/15 Rule because it contains data from fewer than 15 customers or data from 1 or more customers, whose usage represents more than 15 percent of· the aggregated data. Other data will not be aggregated at all. Public Service intends to provide this information pursuant to the Agreement without first obtaining an individual customer's consent; therefore the Motion requests a waiver of certain Data Privacy Rules. 9 R ule 3033 allow s utili ties to pro vided aggr egated custom er da ta to any requester=-e ven w ithout the custom er's co ns ent-if it is suffi cientl y aggr egated. R ule 3033(b j states, "A t a m inim um, a particular aggregation m us t conta in at leas t fift een cus tom ers ; and, w ithi n any cus tom er cl ass no single custom er's cus tom er data or premi se as sociated wi th a sin gle cu stom er's cus tom er data m ay com prise 15 percent or m ore of the tota l cus tom er da ta aggr egated per cust om er cl ass to genera te th e aggr egated data repo rt (th e "15/1 5 R ule")." 5 B e fo r e t h e P u b li c U t ili t ie s C o m m i s s i o n o f t h e S ta t e o f C e t o ra d o D e ci s i o n N o . C 1 6 -0 3 3 6 -1 P R O C E E DI N G N O . 1 5 A -0 5 8 9 E 13 . On M arch 24, 2016, the Co mmi ssion ordered Boulder to notice the req uest fo r limited waiver of the Comm ission's Data Privac y Rules. pub lishing the notice for two co nsec utive Sun da ys in The Boulder Daily Camera:" Th e notice was published on M arch 27 an d on April 3, 2016. O n April 4, 2016, Boulder filed a N otice of Filin g Affi davit. 14. We find that the limi ted waiver of the Data Privacy Rules is in the public interest an d it w ill be gr anted . It is reas onable and in the public interest for Boulder and the other part ies to obtain thi s info rmation. A dditionally, Boulder, as hom e ru le city, is in a unique position as the entity reque sting cus tom er inform ation for its citizens. We em phasize that Boulder's status as a hom e rul e city is signi fican t an d, as such, this D ecision on the limi ted waiver of Data Privacy Rules should not be tak en as precedential. We agree w ith Boulder that it need s thi s information to develop its Supplem ental Application dem onstrating the reliability an d safety of Public Serv ice 's rema ining netw ork. Th e interv eners and the Commis sion also need access to th e inform ation to evalua te whether Boulder's pro posal is in the public in terest. 15. A dditionally, the Hi ghl y Confidential pro tec tion given to the information will suffi ciently pro tect the privacy and secur ity of Pu blic Service's cus tomers should that inform ation convey cus tom er data, eith er directly or by extrapolation, that would otherw ise be pro tected unde r the D ata Privacy Rules. 16. We therefo re gr ant a lim ited w aiver of the Commi ssion's Data Privacy Rules 3027(b), 3032(a), and 3033(b). ' 0 Decision No. C16-0244-I, 116. 6 B e fo re th e P u b li c U tili tie s C o m m issio n of th e S ta te o f C o lo r a d o D ecisio n N o . C 1 6 -0 3 3 6 -I P R O C E E DI N G N O . 1S A --O S 8 9 E 3. Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege 17. The Motion requests that the Commission approve the Agreement, which would govern discovery procedures until Boulder files its Supplemental Application. In addition to procedures related to confidentiality and data privacy, the Agreement modifies the Commission's established discovery procedures. Specifically, the Agreement provides for the following discovery requirements: • Each party may propound no more than thirty (30) formal discovery requests to any other party, with each subpart of a request counted as a singular request, and that the time to respond shall be extended to thirty (30) days. • Any party responding to discovery during this period has a continuing obligation to provide regular updates to these discovery requests and will provide any such supplemental response(s) every 15 days after providing its initial response to any discovery request if additional information is available, if practicable, and in no event later than 30 days after providing its initial discovery response and every 30 days thereafter. • Responses and any supplemental responses to discovery requests shall be provided by the party responding to the discovery to all Parties. 18. The Parties also agree not to propound discovery on Public Service until it has provided certain information to Boulder and others who have signed appropriate nondisclosure agreements. After Boulder files its Supplemental Application, the discovery procedures codified in 4 CCR 723-1-1405 will apply unless otherwise authorized by the Commission. 19. The Agreement also specifies: how Boulder can seek additional information from Public Service; how Highly Confidential information will be treated at the conclusion of the proceeding; that Public Service reserves the right to seek compensation for its proprietary information in any subsequent condemnation proceeding; and that all Parties will use encryption to safeguard the information. 7 B efore th e P u b li c U tili ti e s C o mmi ssio n of th e S ta te of C o lo ra d o D e ci sio n N o . C 16 -0 33 6 -I PROCEEDING NO. 1SA-0S89E 20. We find that the modified discovery procedures and other procedures described in the Agreement are reasonable, and we approve the Agreement. IL ORDER A. It Is Ordered That: 1. Unopposed Motions for Approval of Modified Discovery Procedures, Approval of Extraordinary Protection for Highly Confidential Information, and Waiver of the Commission's Data Privacy Rules filed by the City of Boulder on March 16, 2016 is granted. 2. This Decision is effective upon its Mailed Date. B. ADOPTED IN COMMISSIONERS' WEEKLY MEETING April 13, 2016. (SEAL) THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO JOSHUA B. EPEL GLENN A. V AAD ATTEST: A TRUE COPY FRANCES A. KONCILJA Commissioners Doug Dean, Director 8 E X H IB IT C D e c is io n N o . C 1 6 -0 9 3 2 -I BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORA DO PROCEEDING NO. l 5A-0589E IN THE MATTER OF THE APPLICATION OF THE CITY OF BOULDER, COLORADO FOR APPROVAL OF THE PROPOSED TRANSFER OF ASSETS FROM PUBLIC SERVICE COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND RELIEF. INTERIM DECISION GRA NTING MOTION FOR EXTRA ORD INARY PROTECTION FOR HIGHLY CONFIDENTIAL INFORMATION AND WAIVING RE SPONSE TIME E CD .... en =- :n en = = - - - ... I ... :., = :I. = = ca .. = - = :., Mailed Date: Adopted Date: October 7, 2016 October 5, 2016 I. TABLE OF CONTENTS BY THE COMMISSION 1 A. Statement 1 B. Background 2 C. Findings and Conclusion 3 1. Highly Confidential Status 3 II. ORDER 5 A. It Is Ordered That: 5 B. ADOPTED IN COMMISSIONERS' WEEKLY MEETING October 5, 2016 5 I. BY THE COM M ISSION A. Statement 1, This Decision grants the Motion for Extraordinary Protection and Requested Waiver of Response Time (Motion) filed by the City of Boulder (Boulder) on September 28, 2016. Consistent with the discussion below, we designate as B efo re th e P u b li c U tilit ies C o m m issio n of th e S ta te of C o lo rad o Decision No. C 16-0932-1 PROCEEDING NO. 15A-0589E Highly Confidential, information listed in Attachment A to the Motion, and waive response time to the Motion. B. Background 2. In this Proceeding, Boulder requests the transfer of certain distribution assets from Public Service Company of Colorado (Public Service) to create a municipal electric utility. If Boulder wishes to acquire Public Service's assets, the Commission must review and approve the acquisition to ensure that ratepayers outside of Boulder are not harmed. 3. In December 2015, the Commission dismissed part of Boulder's initial application for the transfer of assets as violating the doctrine of regulated monopoly, and allowed Boulder to file a Supplemental Application. 1 The Commission stated that the Supplemental Application "must contain sufficient information and evidence to demonstrate the reliability and safety of the resulting network and the reasonableness of the resulting costs to Public Service and its ratepayers. "2 4. The Commission also granted Boulder's request to conduct discovery before it filed a Supplemental Application. Subsequently, Boulder, Public Service, and the intervening parties' reached an Agreement on Discovery Procedures, Confidentiality, Data Privacy, and Privilege Prior to Filing Second Supplemental Application (Agreement).4 On April 19, 2016, 1 See Decision No. C 15-1360-I, issued December 30, 2015. 2 Id. ,r 42. 3 The intervening parties are: Staff of the Colorado Public Utilities Commission; the Office of Consumer Counsel; Boulder Chamber of Commerce; CF&I Steel, L.P.; Climax Molybdenum Company; IBM, Inc.; Leave BoCo Out; Tri-State Generation and Transmission Association, Inc.; and the University of Colorado, Boulder. 4 The Agreement was filed on March 16, 2016 as Attachment A to Boulder's Unopposed Motions for Approval of Modified Discovery Procedures, Approval of Extraordinary Protection for Highly Confidential Information, Waiver of the Commission's Data Privacy Rules, and to Waive Response Time. 2 B efo re the P u b li c U tili ties C o m m issio n of th e State of C o lo ra d o D e c i s i o n N o . C 1 6 -0 9 3 2 -I P R O C E E D IN G N O . ISA -05 8 9 E the Commission granted Highly Confidential status for the data, information, and model Public Service would provide in accordance with the Agreement.5 5. On September 28, 2016, Boulder filed its Second Supplemental Verified Application. Concurrently, Boulder filed the Motion for Extraordinary Protection and Requested Waiver of Response Time. 6. Through the Motion, Boulder seeks extraordinary protection for highly confidential information set out in Attachment A of the Motion, and requests continued extraordinary protection for information that previously granted that protection in Decision No. C16-0336-I. Boulder also requests that response time be waived. C. Findings and Concl usion 1. H ighly Confidential Status 7. Boulder requests that the Commission grant Highly Confidential status to the information identified in Attachment A of the Motion. Boulder states that the information in Attachment A relies, in whole or in part, on information already deemed highly confidential and obtained through the Agreement. Boulder states that the information in Attachment A is consistent with Exhibit 1 of the Agreement, detailing the level of protection and identifying those individuals who will be allowed access to the information. Boulder also states that it wishes to ensure the continuation of the extraordinary protection already afforded the information provided through the Agreement. Boulder asserts that Public Service and Boulder's new electric utility could be irreparably harmed should the highly confidential information be disclosed. 5 Decision No. C 16-0336. 3 B efo re th e P u b lic U tili ties C o m m issio n of th e S ta te of C o lo ra d o D ecisio n N o . C l6 -0 9 32 -I PR O C E E DI N G N O . ISA -0S89E 8. According to Boulder, the Commission's rules governing confidential information do not provide sufficient protection for the information in Attachment A. According to the Motion, the nature of the data being requested involves critical "system safety and security as well as trade secrets, privileged information, and confidential commercial, financial, engineering, geological, or geophysical data. "6 9. The Motion states that, pursuant to Rule 1400 of the Commission's Rules of Practice and Procedure, 4 Code of Colorado Regulations 723-1, Boulder conferred with the parties to this Proceeding and is authorized to represent that the parties, with the exception of IBM, Inc. (IBM), they have no objections to the Motion. Boulder represents that the Motion is consistent with the terms of the Agreement and requests waiver of response time to the Motion. 10. On September 30, 2015, IBM filed a Response to Boulder's Motion for Extraordinary Protection and Requested Waiver of Response Time (Response). In the Response, IBM states that it was unable to develop a position on the Motion within the conferral period, but that on further review, it takes no position on the Motion. 11. We find that the data and information that Boulder lists in Attachment A to the Motion require extraordinary protection to protect the safety and the security of the electric grid. We grant the request for extraordinary protection and highly confidential status to the information described in Attachment A to the Motion. 12. As no party in this Proceeding objects to the Motion, we find good cause to grant the request to waive response time. 6 Motion, page 3. 4 B efo re th e P u b li c U tili ti es C o m m issio n of th e State of C o lo rad o Decision No. Cl6-0932-I PROCEEDING NO. ISA-0589E II. ORDER A. It Is Ordered That: 1. T he Motion for Extraordinary Protection and Requested Waiver of Response Time filed by the City of Boulder on September 28, 2016, is granted. 2. This Decision is effective upon its Mailed Date. B. ADOPTED IN COMMISSIONERS' WEEKLY MEETING October 5, 2016. (SE A L ) THE PUBLIC UTILITIES COMMISSION OF T H E ST A TE OF COLORA DO JO SH U A B. EPEL G L E NN A. V A A D A T T E ST : A T R U E C O PY FRA N CE S A. K O N C ILJA C om m issioners Doug D ean, D irector 5 EXHIBITD Decision No. C17-0378-I BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO PROCEEDING NO. 15A-0589E IN THE MATTER OF THE APPLICATION OF THE CITY OF BOULDER, COLORADO FOR APPROVAL OF THE PROPOSED TRANSFER OF ASSETS FROM PUBLIC SERVICE COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND RELIEF. INTERIM DECISION WAIVING RESPONSE TIME AND GRANTING UNOPPOSED MOTIONS Mailed Date: May 11, 2017 Adopted Date: May 10, 2017 I. BY THE COMMISSION A. Statement 1. In this Proceeding, the City of Boulder (Boulder) seeks approval of the transfer of assets and other related relief so that Boulder can create a municipal electric utility. 2. By this Decision, the Colorado Public Utilities Commission (Commission) grants the Motion to Extend Certain Deadlines in the Procedural Schedule (Motion to Extend Deadlines), filed by Boulder on May 4, 2017. We also grant the Motion to Modify Order Affording Extraordinary Protection to Reclassify Certain Information as Public (Motion to Reclassify Highly Confidential Information), filed by Public Service Company of Colorado (Public Service or Company) on May 9, 2017. 3. We waive the response time to these unopposed motions. Colorado PUC E-Filings System Before the Public Utilities Commission of the State of Colorado Decision No. C17-0378-I PROCEEDING NO. 15A-0589E 2 B. Boulder’s Motion to Extend Certain Deadlines in the Procedural Schedule 4. By Decision No. C17-0318-I, issued April 24, 2017, we directed Boulder to file a Third Supplemental Verified Application to ensure intervening parties have adequate clarity as to the relief Boulder seeks. Decision No. C17-0318-I also established a procedural schedule that included deadlines for direct, answer, rebuttal, and cross-answer testimony. By Decision No. C17-0336-I, issued May 1, 2017, we amended the procedural schedule to add additional filing and procedural deadlines. 5. By Decision No. C17-0353-I, issued May 3, 2017, we requested specific information from the parties that will assist us in rendering necessary decisions in this Proceeding. 6. On May 4, 2017, Boulder filed its Motion to Extend Deadlines asking the Commission to extend the deadlines for testimony in support of and in response to Boulder’s Third Supplemental Verified Application. Boulder is requesting nominal extensions in light of the Commission’s request for additional information in our May 3, 2017, Decision. Boulder proposes to amend the procedural schedule as follows: · The Third Supplemental Verified Application and supporting Direct Testimony will be due May 12, 2017 at 3:00 p.m. (a two-day extension); · Answer Testimony will be due June 16, 2017 (a two-day extension); and · Rebuttal Testimony and Cross Answer Testimony will be due July 7, 2017 (a one-day extension). 7. Boulder states that it has conferred with all of the intervening parties in this Proceeding and no party opposes this motion. As such, Boulder requests that the Commission waive response time to this motion. Before the Public Utilities Commission of the State of Colorado Decision No. C17-0378-I PROCEEDING NO. 15A-0589E 3 8. We find good cause to waive response time and grant Boulder’s unopposed Motion to Extend Deadlines. The amended procedural schedule in this Proceeding is as follows: Filing of Third Supplemental Verified Application and Direct Testimony in Support of the Third Supplemental Verified Application May 12, 2017 Filing of Answer Testimony Addressing Third Supplemental Verified Application June 16, 2017 Filing of Rebuttal Testimony in Support of the Third Supplemental Verified Application and Cross-Answer Testimony Addressing Third Supplemental Verified Application July 7, 2017 Prehearing Motions July 14, 2017 Settlement Deadline July 19, 2017 List of Witnesses, Estimated Cross-Examination Times, and Hearing Exhibit List July 20, 2017 Prehearing Conference July 21, 2017 Stipulated Facts July 24, 2017 Hearings July 26, 2017 through August 4, 2017 Statements of Position August 15, 2017 Proposed Orders, Including Findings of Fact and Conclusions of Law, with Record Citations August 17, 2017 Statutory Deadline for Commission Decision September 13, 2017 C. Public Service’s Motion to Reclassify Certain Information as Public 9. Through a series of decisions between April and November 2016, we approved modified discovery procedures, a limited waiver of data privacy rules, and extraordinary protection for highly confidential information that Public Service intended to provide to Boulder and the interveners in this Proceeding.1 Consistent with these decisions, the parties have agreed to a level of access for each individual allowed to view the highly confidential information, and established procedures to protect the highly confidential information shared through testimony and discovery responses. 1 See Decision No. C16-0336-I, issued on April 19, 2016; Decision No. C16-0932-I, issued on October 7, 2016; and Decision No. C16-1053-I, issued on November 17, 2016. Before the Public Utilities Commission of the State of Colorado Decision No. C17-0378-I PROCEEDING NO. 15A-0589E 4 10. Public Service has now determined that some of the information previously identified as highly confidential and included in the administrative record can be made public without putting sensitive, highly confidential information at risk. Public Service has identified this information in Exhibit 1 attached to its Motion to Reclassify Highly Confidential Information. According to Public Service, no party opposes the change in status from highly confidential to public for the information identified in Exhibit 1, and reclassifying the information will simplify Boulder’s filing of its Third Supplemental Verified Application. 11. Public Service also requests that the Commission grant two self-executing modifications to the prior decisions. First, Public Service requests that, once the Company and Boulder finish reviewing Highly Confidential Attachment TAG-6, Volume 1, and agree on which parts can be made public, that Public Service and Boulder file a notice of that agreement. 12. Second, Public Service proposes that a party planning to include with its testimony a discovery response that contains highly confidential information consult with the party that provided the discovery response and determine whether the information can be made public or if it must remain highly confidential. If the parties agree that the information can be made public, the party including the discovery response in its testimony must also include the written agreement as to confidentiality with the testimony. 13. Public Service states that no party that responded to its conferral notice has objected to the relief Public Service requests. Public Service asks the Commission to waive response time to its Motion to Reclassify Highly Confidential Information so the Commission decision will be known before Boulder must file its Third Supplemental Application and supporting direct testimony. Before the Public Utilities Commission of the State of Colorado Decision No. C17-0378-I PROCEEDING NO. 15A-0589E 5 14. We find good cause to waive the response time and grant Public Service’s Motion to Reclassify Highly Confidential Information. II. ORDER A. It Is Ordered That: 1. The Motion to Extend Certain Deadlines in the Procedural Schedule, filed by the City of Boulder (Boulder) on May 4, 2017, is granted. 2. Response time to the Motion to Extend Certain Deadlines in the Procedural Schedule is waived. 3. The following amendments to the procedural schedule established by Decision No. C17-0336-I, issued May 1, 2017, and the discussion above are adopted: · Boulder’s Third Supplemental Verified Application and supporting Direct Testimony shall be filed no later than May 12, 2017. · Answer Testimony addressing the Third Supplemental Verified Application shall be filed no later than June 16, 2017. · Rebuttal Testimony supporting the Third Supplemental Verified Application and Cross-Answer Testimony addressing the Third Supplemental Verified Application shall be filed no later than July 7, 2017. 4. Motion to Modify Order Affording Extraordinary Protection to Reclassify Certain Information as Public, filed by Public Service Company of Colorado on May 9, 2017, is granted. 5. Response time to the Motion to Modify Order Affording Extraordinary Protection to Reclassify Certain Information as Public is waived. 6. This Decision is effective upon its Mailed Date. Before the Public Utilities Commission of the State of Colorado Decision No. C17-0378-I PROCEEDING NO. 15A-0589E 6 B. ADOPTED IN COMMISSIONERS’ WEEKLY MEETING May 10, 2017. (S E A L) ATTEST: A TRUE COPY Doug Dean, Director THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO JEFFREY P. ACKERMANN ________________________________ FRANCES A. KONCILJA ________________________________ WENDY M. MOSER ________________________________ Commissioners EXHIBIT E D e c is io n N o . C l 8 -0 8 8 5 BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO PROCEEDING NO. 15A-0589E IN THE MATTER OF THE APPLICATION OF THE CITY OF BOULDER, COLORADO FOR APPROVAL OF THE PROPOSED TRANSFER OF ASSETS FROM PUBLIC SERVICE COMPANY OF COLORADO TO THE CITY AND ASSOCIATED AUTHORIZATIONS AND RELIEF. COMMISSION DECISION GRANTING JOINT MOTION TO CONTINUE AND EXTEND PROTECTIVE ORDER, WAIVE COMMISSION'S DATA PRIVACY RULES, AND WAIVE RESPONSE TIME E a, .... en =- :n en = = - - - ... I 161 :i:a = II. = = ca .. = - = :i:a Mailed Date: October 3, 2018 Adopted Date: September 26, 2018 I. BY THE COMMISSION A. Statement 1. This Decision grants the joint motion of the City of Boulder (Boulder) and Public Service Company of Colorado (Public Service) (collectively, Joint Parties), filed on September 17, 2018 (Joint Motion). By this Decision, we grant the Joint Parties' requests to continue and extend the extraordinary protection granted in this Proceeding to: (1) afford access to all existing highly confidential information to employees of the new engineering firm hired by Boulder; and (2) cover Public Service's updated GIS data base and scopes of work and detailed design drawings and any other highly confidential information Boulder and Public Service may need to exchange pertaining to the Separation Plan.1 We also grant the Joint Parties' requests to waive certain of the Commission's data privacy rules and to waive response time to the Joint Motion. 1 "Separation Plan" means Boulder's plan for separating the electric distribution system into two systems, one owned and operated by Boulder's new electric utility and one owned and operated by Public Service. See Third Supplemental Verified Application, filed May 12, 2017, at p. 3. B efo re th e P u b lic U til it ies C o m m issio n of th e S tate of C o lo rad o Decision No. CI 8-0885 PROCEEDING NO. 15A-0589E B. Background 2. The Commission first granted extraordinary protection m this Proceeding by Decision No. C16-0336-I, issued April 19, 2016, granting Boulder's motions for modified discovery procedures, extraordinary protection of highly confidential information provided under the discovery agreement, and waiver of certain data privacy rules. Subsequently, by Decision No. Cl 6-0932-1, issued October 7, 2016, the Commission granted Boulder's request to continue the extraordinary protection of highly confidential information exchanged under the discovery agreement and to extend such protection to comparable or derivative information as identified in an attachment to its motion. 3. On September 14, 2017, the Commission issued Decision No. Cl 7-0750 on the merits of this Proceeding, granting in part and with conditions, and denying in part, Boulder's application. We conditioned final approval on Boulder: (1) negotiating with Public Service an agreement regarding easements and other real property rights; (2) finalizing the list of assets for transfer; and (3) negotiating with Public Service agreement(s) regarding Boulder's payment of costs incurred by Public Service to effect municipalization and separate its system. 2 C. Findings and Conclusions 1. Continuation and Extension of Extraordinary Protection 4. The Joint Parties request the extraordinary protection granted in Decision No. C 16-0932-1 be continued and extended in four ways. First, to afford access to all existing highly confidential information to certain employees of NEI Electric Power Engineering Inc. (NEI), an engineering firm hired by Boulder, identified in Attachment 1 to the Joint Motion. Second, to cover Public Service's updated GIS data base, which Public Service will need to prepare and 2 Decision No. C 17-0750 at~~ 149-161. 2 B efo re th e P u b li c U til ities C o m m issio n of th e S ta te of C o lo ra d o D ecisio n N o . C l 8-0 8 8 5 P R O C E E DI N G N O . 15 A -0 5 8 9 E provide to Boulder to complete the revised list of assets. Third, to cover Public Service's scopes of work and detailed design drawings for system separation. Fourth, to cover any similar highly confidential data and information that Boulder and Public Service may need to provide to each other pertaining to the Separation Plan in the course of performing their agreements addressing permanent easements and cost reimbursement. 5. The Joint Parties state the existing highly confidential information, the updated GIS data base, Public Service's scopes of work and detailed design drawings, and the similar types of data and information that Boulder and Public Service may need to address, involve critical system safety and include security and trade secrets, privileged information, and confidential commercial, financial, engineering, geological, or geophysical data. The Joint Parties state that Public Service as well as Boulder's new electric utility could be irreparably harmed should this information be disclosed. 6. We find the Joint Parties' requests to continue and extend the protective order are reasonable and we grant the requests. We conclude that granting this extraordinary protection is consistent with our past decisions in this Proceeding and appropriate to facilitate the continued negotiations between Boulder and Public Service. 2. Waiver of Data Privacy Rules 7. The Joint Parties request a limited waiver of the Commission's Data Privacy Rules, 4 Code of Colorado Regulations (CCR) 723-3-3026 et seq., to allow for Public Service to re-provide customer information as part of the GIS data base update and because some of the Public Service scopes of work and detailed design drawings involve customer-specific facilities. This issue was previously raised in Boulder's March 16, 2016, motion requesting waiver of data privacy rules, and our Decision No. C16-0336-I. In Decision No. C16-0336-I, after ordering 3 B e fo r e th e P u b li c U til itie s C o m m issio n o f th e S ta te of C o lo ra d o D e c isio n N o . C 18 -0 8 8 5 P R O C E E DI N G N O . IS A -0 5 8 9 E Boulder to notice its request in The Boulder Daily Camera, the Commission found it in the public interest to grant a limited waiver of Rules 3027(b),3 3032(a),4 and 3033(b),5 4 CCR 723-3. In making that decision, we emphasized Boulder's status as a home rule city and the extraordinary protection that would be afforded to the customer information. 8. We again find it in the public interest to grant a limited waiver of Rules 3027(b), 3032(a), and 3033(b), 4 CCR 723-3, to allow for further exchange of information between Boulder and Public Service and because the highly confidential protection afforded to the customer information will sufficiently protect the privacy and security of the customer data that would otherwise be protected under our data privacy rules. 3. Waiver of Response Time 9. The Joint Parties request waiver of response time to the Joint Motion on grounds that it is unopposed. Since no party indicated an objection during conferral, and no responses were received, we find good cause to grant the request to waive response time. 3 Rule 3027(b) states, "A utility shall not disclose customer data unless such disclosure conforms to these rules, except as required by law or to comply with Commission rule." 4 Rule 3032(a) states, "Except as provided in this rule, paragraph 3027(b), rule 3030 [Access to Customer Data for the Provision of Regulated Utility Service], and rule 3031 [Local Government Access to Customer Data from a Utility for Audit], a utility shall not disclose customer data to any third party unless the customer or a third party acting on behalf of a customer submits a paper or electronic signed consent to disclose customer data form that has been executed by the customer ofrecord." 5 Rule 3033 allows utilities to provide aggregated customer data to any requester-even without the customer's consent-if it is sufficiently aggregated. Rule 3033(b) states, "At a minimum, a particular aggregation must contain at least fifteen customers; and, within any customer class no single customer's customer data or premise associated with a single customer's customer data may comprise 15 percent or more of the total customer data aggregated per customer class to generate the aggregated data report (the "15/15 Rule")." 4 B e fo r e th e P u b li c U tilitie s C o m m issio n of the State of Colorado Decision No. Cl8-0885 PROCEEDING NO. 15A-0589E II. ORDER A. It is Ordered That: 1. The Unopposed Joint Motion of the City of Boulder and Public Service Company of Colorado Requesting that the Decision Affording Extraordinary Protection (Decision No. C16-0932-I) Be Continued and Extended to Cover New City Engineers and Public Service Updates and Derivative Data and Information; Waiver of the Commission's Data Privacy Rules; and Waiver of Response Time, filed on September 1 7, 2018, is granted. 2. This Decision is effective upon its Mailed Date. B. ADOPTED IN COMMISSIONERS' WEEKLY MEETING September 26, 2018. (SE AL) THE PUBLIC UTILITIES COMMISSION OF THE ST A TE OF COLORADO FRANCES A. KONCILJA WENDY M. MOSER ATTEST: A TRUE COPY Commissioners CHAIRMAN JEFFREY P. ACKERMANN ABSENT. Doug Dean, Director 5 1 US.123873093.01 DISTRICT COURT, BOULDER COUNTY, COLORADO Court Address: 1777 6TH Street, Boulder Colorado 80302 303-441-3750 _________________________________________________ Petitioner: THE CITY OF BOULDER, a Colorado Home Rule City, v. Respondents: PUBLIC SERVICE COMPANY OF COLORADO, a Colorado Corporation, d/b/a XCEL ENERGY; MORGAN GUARANTY TRUST COMPANY OF NEW YORK; and PAUL WEISSMANN, in his official capacity as Treasurer of Boulder County. COURT USE ONLY __________________________ Case Number: 19 CV 30637 Division: 5 PROPOSED ORDER RE: BOULDER MOTION FOR PROTECTIVE ORDER The Court, having reviewed Petitioner’s Motion for Protective Order and being fully advised in the premises, hereby DENIES said Motion. . DATED: ________________, 2019 BY THE COURT: ____________________________________ District Court Judge