Let’s revisit business secrecy exemptions as Energy Week meets Sunshine Week

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This is both Sunshine Week and Energy Week in New Hampshire – a very happy confluence.

It’s happy not because of solar energy (though it’s never a bad time for consumers to consider the benefits of rooftop or backyard photovoltaics).  Rather, because Sunshine Week is a celebration of the virtues of government transparency, this is a great time to consider the extent to which secrecy is impeding the development of great energy policy.

Journalists and transparency activists tend to focus on those aspects of the Right-to-Know Law – RSA 91-A, our sunshine statute – that deal with sexy items like police records, personnel issues, contract negotiations, and executive sessions.  Seldom noticed is the over-used and much abused provision of RSA 91-A that allows businesses to shield from public disclosure vast swaths of information they provide to the government.

Granite Bridge secrecy

Exhibit A is last week’s prehearing conference at the Public Utilities Commission (PUC), kicking off the agency’s consideration of the controversial Granite Bridge project of Liberty Utilities.  Liberty wants to build a new natural gas pipeline along Route 101 from the seacoast to Manchester along with a giant storage tank for liquefied natural gas in Epping.

Liberty has made the proposal in the wake of the withdrawal by the Houston-based pipeline conglomerate Kinder Morgan in 2016 of its controversial Northeast Energy Direct (NED) project that would have sliced across southern New Hampshire.  Liberty had planned to use the NED pipeline as a major new source of wholesale fuel supply.

Unlike NED, Granite Bridge is strictly an in-state operation that would be owned directly by Liberty as a local gas distribution company, and would require no eminent domain proceedings.  But, like NED, Granite Bridge has attracted the opposition of citizen organizations such as the Conservation Law Foundation, the Pipeline Awareness Network, ECHO Action, and others who believe that in light of climate change any new projects designed to expand or even facilitate the use of fossil fuels should be skeptically scrutinized if not stopped outright.

When Governor Sununu and the Business and Industry Association talk about the pressing need for new energy infrastructure, Granite Bridge is precisely the kind of project they mean – even more so than Eversource’s Northern Pass transmission project.  Unlike Northern Pass, Granite Bridge would serve the energy needs of Granite State customers, and exclusively so.

Great public interest

Therefore, the Granite Bridge proceeding on which the PUC has just embarked is a matter of the greatest public interest.  Unfortunately, Liberty is seeking to invoke certain language in section 5 of RSA 91-A, and the PUC’s own rules, to keep key information about the Granite Bridge project secret.

At issue is the “confidential, commercial, or financial information” disclosure exemption in section 5.  When Liberty filed its petition for PUC approval in December, it came with a motion for confidential treatment of key data in the proposal.

This was the subject of lively argument at the prehearing conference.  Liberty pointed out that most of the petition – a filing of several hundred pages – is public.  It’s true that Liberty isn’t trying to redact most of the information – just the interesting stuff.  At issue is data like how much the project would cost, key deadlines, and how Liberty evaluated its current plan against other available alternatives.

Privacy vs. public’s interest

The New Hampshire Supreme Court says that in such situations agencies must do the same thing the Court would do on appeal:  balance the claimed privacy interest against the public’s interest in disclosure.

A regrettable consequence of deregulating both the electric and natural gas industries is that utilities now routinely claim they and their counterparties – wholesale suppliers – will suffer competitive harms whenever key terms of their business deals are publicly disclosed.

Utility regulators everywhere (and even some ratepayer advocates) tend to accept these claims without requiring any proof or elaboration.

This flies in the face of RSA 91-A and its interpretation by the New Hampshire Supreme Court.  After all, in a competitive environment, the disclosure of any information by a market participant will be useful to other players.  Should everything be secret for this reason?

Secret deadlines

In this instance, at the prehearing conference there was the absurd spectacle of Liberty pressing for a speedy determination in light of certain deadlines in contracts with wholesale suppliers.  But because Liberty was claiming those deadlines are themselves competitively sensitive and must remain secret, the activists, who favored a more deliberate pace, were at a loss.

On the ‘public’s interest in disclosure’ side of the balancing test, it is important to keep in mind that we are talking here about the public’s interest in knowing what the government is up to.  Activists often seek to maximize disclosure of information filed at the PUC because they want to expose what the utilities are up to – a laudable purpose, for sure, but technically not the reason we have a Right-to-Know Law.

Still, if the balancing test has any meaning then the scale tips here in favor of disclosure even if the same information might reasonably be treated as confidential in a more routine case.  The Right-to-Know Law will not be the subject of Governor Sununu’s talk at the Energy Week breakfast on Thursday but, inevitably, what he says will make an implicit case for disclosing everything, or almost everything, about Liberty’s Granite Bridge proposal.

One final point: As the state’s official advocate for the interests of residential utility customers, I am not making this argument about the Right-to-Know Law in order to gain access to information for me and my staff.  By statute, we already see everything the utilities file at the PUC, but we are also obliged to abide by whatever RSA 91-A determinations the PUC ultimately makes.

Rather, as someone who was a journalist before enrolling in law school, I am acutely aware that I am also part of the government – and, thus, that the public has an interest in knowing what I, too, am up to.  Subjecting the work of my office to public accountability, and also bouncing our ideas off ratepayer advocates and others outside government, become significantly more difficult when most of the key information is deemed by the PUC to be secret.

Sunshine Good for Ratepayers

Plus, I am convinced that ratepayers get better outcomes at the PUC the more sunshine there is.

After a lively argument about RSA 91-A at the prehearing conference, the PUC asked Liberty to pare down its confidentiality request in consultation with our office and the PUC staff.  I am cautiously optimistic about reaching such an agreement.

Regardless, it’s time for a broad and skeptical look at the “confidential, commercial, or financial information” disclosure exemption and how it is applied at state agencies, like the PUC, where businesses file lots of information in quest of permits, permissions and rate approvals.  That would be a fitting way to commemorate the year when Energy Week and Sunshine Week were one and the same.


Power to the People is a column by D. Maurice Kreis, New Hampshire’s Consumer Advocate. Kreis and his staff of four represent the interests of residential utility customers before the NH Public Utilities Commission and elsewhere. It is co-published by Manchester Ink Link and InDepthNH.org.

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