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