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NEPR Received: PUERTO RICO GOVERNMENT PUERTO RICO NEGOTIATED ENERGY PUBLIC SERVICE BOARD Jul 29, 2020 12:21 PM IN RE: Case #: NEPR-AP-2020-0007 APPROVAL OF RENEWABLE ENERGY PURCHASE AGREEMENT WITH PBJL ENERGY SUBJECT: Confidentiality Request; Motion of July 29, 2020. CORPORATION REQUEST FOR DETERMINATION OF CONFIDENTIALITY OF DOCUMENTS ATTACHED TO MOTION TO THE HONORABLE ENERGY NEGOTIATOR: APPEARS the Puerto Rico Electric Power Authority and very respectfully states and requests: I. INTRODUCTION Today, July 29, 2020, the Authority filed a Motion in Compliance with Order Requesting Additional Information (the "Motion") with which several documents were submitted in compliance with the Order of the Energy Bureau. ' Some of these documents were presented sealed as they contain information that the Authority created, or consultants created at their request, to deliberate on the negotiations to achieve the amendments to the non-operational PPOAS and also, information on the terms of the different amendments that they are not the same for every energy producer. Disclosure of this information when the approval process is not yet final would place the Authority at a competitive disadvantage with the consequence of affecting your customers. Therefore, according to applicable laws and regulations, this information must remain edited and sealed, respectively, as it is confidential. II. APPLICABLE LAW AND ANALYSIS The constitutional norm is that the documents prepared by a governmental entity, such as the Authority, are public. However, as already decided by our Supreme Court, this rule, like many others, has its exceptions. As an example, in the case of Pueblo v. Superior Court, 96 DPR 746 (1968), the Supreme Court of Puerto Rico had before it a controversy over the special nature of those documents that are prepared and circulated in the course of an official's function for internal purposes of the governmental entity. Allf resolved the Supreme Court that, in light of Art. 1170 of the Civil Code, supra, "a report, memorandum or writing prepared by an employee or official in the exercise of his position or employment for his superior or for internal purposes of the Decisions and departmental actions are not public documents (our emphasis) that, according to Art. 47 of the Evidence Law, every citizen has the right to inspect "? The determination in that case was based on reasons of public order and the implications that resolving the contrary could have on the effective functioning of the Government. Specifically, it was indicated that "[for reasons of public order; because this would affect the effective operation of the government and would prevent officials from acting with complete freedom and integrity, without fear or inhibition in the preparation of reports, memoranda or other expressions or communications in the course of their duties, for departmental purposes, we must conclude that the Report concerned here, as such, is not subject to inspection under Rule 95 as a "document" or "paper" obtained by The People, from another person " 1 Bhatia v. Governor, 199 D.P.R. 59,102 (2017). Id. On page 757 Article 6.15 of Law 57-2014 provides that If any person who has the obligation to submit information to the Energy Commission understands that the information to be submitted enjoys some privilege of confidentiality, they may request said Commission to give said treatment subject to the following: (a) If the Energy Commission, after the rigorous evaluation, understands that the information must be protected, it will seek ways to grant this protection in the way that least impacts the public, transparency and the right of the parties involved in the administrative procedure in which the allegedly confidential document is submitted. In the exercise of its powers and powers granted by Law 57-2014, the Energy Bureau approved Regulation 8543. This regulation also includes a provision regarding the safeguards that the Energy Bureau gives to confidential information. The regulation provides that: [in compliance with the provisions of (Regulation 8543] or in some order [of the Energy Bureau), a person has the duty to present [to the Energy Bureau] information that, in his opinion, is privileged in accordance with the provisions of the Rules of Evidence, said company will identify the allegedly privileged information, request [the Energy Bureau] for the protection of said information, and will present in writing the arguments in support of its approach on the privileged nature of the information. The Commission will evaluate the petition and, if it understands that the information merits protection, it will proceed in accordance with the provisions of Article 6.15 of Law 57-2014, as amended. Section 6 (m) of the Organic Law of the Authority establishes that: (The Authority will make available to its customers information on the electrical infrastructure, including information on public and private generators, so that customers can assess the situation of the electrical infrastructure and the Authority as public instrumentality The documents and information of the Authority will be made available to clients who request them, with the exception of [among others a] ... (ii) ideas regarding the negotiation of potential contracts of the Authority or with the determination to resolve or terminate existing contracts [.] Likewise, Regulation 6285 of the Authority, which has the force of law, regulates the administration of documents of the Authority and indicates in its section V the categories of documents that may be designated as confidential. According to the Regulations, and in relation to this case, it is confidential: (The) [il Information disclosed or generated by the Authority, as part of a commercial transaction, the disclosure of which could be used by third parties to provide goods or services to the Authority, At a higher price than those goods or services will regularly be offered, to the detriment of the purposes contained in the enabling law of the Authority, to make electric power service affordable in the broadest economic way. By provision of law, then, the Authority may claim as privileged and confidential those documents and information on commercial transactions that are in progress. In these categories of documents are exhibits A, B, C and D (the "Confidential Documents"). During the process of negotiating amendments to PPOAS the Authority places itself in the place of an ordinary buyer. "The Sealed Submitted Confidential Documents contain deliberative and commercial information of the Authority that was prepared for the purpose of negotiating amendments to PPOAS. Such information includes strategies and commercial deliberations of the Authority and analysis of prices and economics of each agreement separately. The information contained in the Confidential Documents cannot be disclosed until the transactions are final. The premature disclosure of this information would place the Authority at a disadvantage in the competition for the negotiations and, in addition, the final execution of the contracts would be at stake. CONCLUSION The disclosure of the Confidential Documents is exempt by the applicable jurisprudence, laws and regulations Keeping these confidential is a consideration that goes beyond the disclosure of the same because they have information that would put the Authority at a competitive disadvantage and, consequently, affect the people of Puerto Rico, its clients. FOR ALL THINGS, the Energy Bureau is requested to determine that the Confidential Documents are confidential under the applicable laws and regulations and, in addition, to order that they remain sealed. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this July 29, 2020. To Katiuska Bolaos Katiuska Bolaos kholanos @diazvaz. law TSPR 18888 DAZ & VZQUEZ LAW FIRM, PSC 290 Jess T. Piero Ave. Oriental Tower, Suite 1105 San Juan, P R 00918 Tel. (787) 395-7133 Fax. (787) 497-9664 "See Hoover v. United States Dep't of the Interior, 61I FE.24 1132 (Sth Cir. 1980); Martin Marietta Aluminum, Inc., V. Adm'r, Gen. Services Admin, 444 F. Supp. 945 (CD Cal. 1977) (Explaining how the disclosure of a pre-sale appraisal agreement to help the Federal Government sell or buy property can seriously affect your business interests).