II. DISCUSSION

A. TURN's Application for Rehearing

TURN takes issue with two aspects of D.06-06-066: Sections B and E of Part VII of the IOU matrix (Appendix 1 at pages 15-16). TURN contends these two sections are unlawful and inconsistent with the remainder of D.06-06-066 because: (1) they require IOUs to make their proposed or executed power purchase agreements public generally after three years from the start of delivery under a contract, even if deliveries are still occurring, which TURN contends violates subdivision (g) of section 454.5; and (2) they require contract summaries, including capacity, expected deliveries and length of contract, to be made public immediately, which TURN argues would provide market participants with a means of determining an IOU's net short position, and thus conflicting with Sections VI A and B of the matrix in an arbitrary and capricious manner. Aside from its argument that section 454.5 subdivision (g) would be violated if the agreements are made public three years after the start of delivery, TURN offers no other legal citation in support of its arguments.

TURN admits that subdivision (g) grants the Commission discretion to determine what information is market sensitive, but argues that explicit reference in subdivision (g) to "proposed or executed power purchase agreements" means that those agreements are explicitly within the definition of what is market sensitive. D.06-06-066 defines market sensitive information as that which has the potential to materially affect the market price for electricity. (D.06-06-066 at p. 78 Conclusion of Law No. 12.) D.06-06-066 does not make market sensitive information public. Indeed, where the utilities establish that information they submit is entitled to confidential treatment, D.06-06-66 ensures that it shall be withheld from public disclosure. However, D.06-06-066 also recognizes that market sensitive information is not indefinitely confidential and that generally the reasons for withholding such information from public disclosure are no longer relevant after a few years. D.06-06-066 adopted a flexible approach to this issue and generally most market sensitive information will be withheld from public disclosure for a three to five year period; however, should any particular information remain market sensitive after that time, the burden is on the utility claiming confidentiality to establish that it is indeed information that is still market sensitive and entitled to be treated as such. If the information at issue is no longer market sensitive, because, pursuant to D.06-06-066, it no longer has the potential to materially affect the market price for electricity, then there is no requirement that the Commission maintain its confidentiality. Not only is such information public, pursuant to the CPRA and the California Constitution, but there is no public policy that would weigh in favor of keeping it confidential. Therefore, TURN's allegation on this issue is without merit.

TURN also alleges that requiring public contract summaries is unlawful in the case of non-renewable procurement standard program (non-RPS) contracts. TURN contends that D.06-06-066 is arbitrary and capricious because this approach may fail to carry out, via the matrix, the Commission's policy decision that RPS contracts should be subject to greater access than non-RPS contracts. In addition, TURN argues that making the contract summaries public also undermines the finding in Sections VI A and B of the matrix that the Utility Bundled Net Open position for capacity and energy remain confidential for three years. TURN speculates that the information could possibly lead to a determination of an IOU's net short and thus undermine the purpose of keeping other information confidential for a period of three years. These are policy arguments, as TURN concedes, and TURN has not demonstrated a legal inconsistency in D.06-06-066 rendering the decision arbitrary and capricious. Its argument is based mostly on speculation and is without merit.

B. CAC/EPUC Joint Application for Rehearing

CAC/EPUC allege that D.06-06-066 deprives them of due process essentially because the decision provides that confidential data may be kept from market participants altogether. D.06-06-066 does not define the term "market participant," and to that extent, CAC/EPUC's arguments are, at the very least, not ripe. However, we have considered each and every of CAC/EPUC's allegations and believe that some of the language used in D.06-06-066 may be confusing, and warrant clarification.

CAC/EPUC also allege that D.06-06-066 may violate portions of the Public Utility Regulatory Policies Act (PURPA) of 1978, Title16 United States Code section 824a-3 and the regulations promulgated there under regarding public inspection of utilities' avoided costs. We disagree. With the modification we are making by this order, CAC/EPUC's issue has been addressed and we find it has no merit.