38.2.5007 PROTECTIVE ORDER--REQUESTS, TIMING OF REQUESTS, AND PROCEDURE
(1) Confidential information will be protected only on commission approval of a request by a provider.
(2) Prior to requesting a protective order, the provider must determine, following a thorough legal and factual examination, that all information claimed to be confidential is a trade secret or otherwise legally protectible.
(3) The facts and legal analysis contained in a request for protective order must make clear to the commission the basis for the request, and must make a prima facie showing of confidentiality. Unless the commission has granted a waiver pursuant to ARM 38.2.5002, the request for protective order must include:
(a) an identification of the person, including contact information (phone number and e-mail address) to whom communications from commission staff, parties, and interested persons may be made;
(b) a complete and specific nonconfidential identification, description, and explanation of the information, item by item or by category of items which are alike, of all information for which protection is requested, suitable for meaningful use in testimony, arguments, public discussion, orders, and the public record;
(c) a complete and specific factual basis, supported by affidavit of a qualified person, that supports the claim of confidential information; and
(d) a complete and specific legal analysis, explaining why the information is confidential information.
(4) Requests for a protective order must demonstrate the following:
(a) If the claimed basis for protection is individual privacy, that:
(i) the provider has made a reasonable effort to contact the individual to ascertain whether the individual waives the right to privacy for the information at issue;
(ii) the individuals with potential privacy interests have actual, subjective expectations of privacy in the information at issue;
(iii) society recognizes such expectations of privacy as reasonable; and
(iv) the demand of individual privacy clearly exceeds the merits of public disclosure.
(b) If the claimed basis for protection is trade secret, that:
(i) prior to requesting a protective order, the provider has considered that the commission is a public agency and that there is a constitutional presumption of access to documents and information in the commission's possession;
(ii) the claimed trade secret material is information;
(iii) the information is secret;
(iv) the secret information is subject to efforts reasonable under the circumstances to maintain its secrecy;
(v) the secret information is not readily ascertainable by proper means; and
(vi) the information derives independent economic value from its secrecy, or that competitive advantage is derived from its secrecy.
(5) If there are bases for confidential information other than individual privacy or trade secret, requests for protection must explain, and demonstrate compliance with, the legal standards required for protection.
(6) Prior to issuing a protective order the commission will review the demonstrations made pursuant to (4) and (5), and may question a provider on those demonstrations.
(7) A request for protective order must not include the claimed confidential information. Generally, claimed confidential information must not be filed at the commission before the issuance of a requested protective order. If it is necessary for the commission to access claimed confidential information prior to the issuance of a protective order, such access will be by special commission order.
(8) The commission will notice requests for protective orders, and the issuance of protective orders, on its weekly agenda.
(9) In the interests of preventing delays in proceedings, the commission encourages providers to make requests for protection of confidential information at the earliest possible time in a proceeding, including in anticipation of a proceeding if the provider knows that claimed confidential information will be submitted in the proceeding. Failure to heed this section may result in a commission conclusion that a filing is incomplete, which in turn may change the anticipated date on which a commission decision will issue.
History: 69-3-103, MCA; IMP, 69-3-105, MCA; NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2002 MAR p. 3330, Eff. 11/28/02; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.