FOIA Requirements for Integrated Resource Planning
According to guidelines under the Freedom of Information Act, 5 U.S.C. § 552, and the Department of Energy implementation regulations at 10 C.F.R. § 1004, once an integrated resource plan or small customer plan is submitted to the Western Area Power Administration, it becomes an agency record. As such, it is subject to certain guidelines regarding public requests for the information as outlined in the above statute and regulation.
Holding of Customer Integrated Resource Plans
Once a WAPA Office receives a submitted plan or annual progress report or other item related to an integrated resource or small customer plan, it is forwarded to the customer representative who is the lead reviewer. The Office, most likely through that person, will then notify the customer that the plan has been received and will be reviewed accordingly. WAPA holds the plan in the strictest confidentiality, and only the customer representative and other WAPA employees on the IRP reviewing team, or their managers, will have access to the document(s). The plan and any associated documents are safely stored to ensure their security.
WAPA is required under the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, and the Energy Planning and Management Program (60FR44151) GPO's Federal Register site, 10 C. F. R. § 905, to submit cumulative IRP information in its annual report to Congress, and to conduct periodic reviews of customer actions to ensure consistency with the approved IRPs. These regulations also require WAPA to compare the annual progress reports or small customer update letters to the plans themselves. For those reasons, WAPA will maintain physical possession of the IRP and other documents submitted in support of the IRP.
Plan Requests by Others
IRPs, small customer plans, annual progress reports, small customer plan update letters, and other items within WAPA's control become agency records subject to requests by the public under FOIA. Pursuant to FOIA and the implementing regulation, WAPA will follow strict procedures to ensure that customers whose plans have been requested are notified, and that only appropriate information--if any--is provided to the requestors.
WAPA's regulations state:
IRPs and associated data submitted to WAPA will be made available to the public unless WAPA has determined, pursuant to 10 C.F.R. Part 1004, that particular information is exempt from public access under the Freedom of Information Act (FOIA). Customers may request confidential treatment of all or part of a submitted document under FOIA's exemption for confidential business information. Materials so designated and which WAPA determines to meet the exemption criteria in the FOIA will be treated as confidential and will not be disclosed to the public. - 10 C.F.R. § 905.20
If a public request for all or parts of an IRP or other document never occurs, then the document will only be viewed by approved WAPA employees. If a public request occurs, but does not follow FOIA procedures, then the IRP or other document will not be provided unless specifically agreed to in writing by the customer(s) who submitted the IRP or other document. If such a request is submitted, then the Regional customer representative will contact the lead customer and determine the appropriate steps to take. If no information is provided to the requestor, then WAPA will point the requestor to FOIA so that the entity has a fair and legal opportunity to request information.
If a public request pursuant to FOIA is submitted for all or parts of an IRP or other document, then WAPA's Freedom of Information Officer (Michael S. Hacskaylo, General Counsel) is responsible for determining if any or all parts of that publication should be provided. It is WAPA's policy first and foremost to have the customer review the IRP or other documents that are requested in order for the customer to make a preliminary determination on whether the information is proprietary. While information may be marked proprietary by the customer prior to submittal, an opportunity for further review will be provided. The customer will be provided 15 days to review the documents and notify WAPA of any information that is proprietary. WAPA's FOIA Officer will then review the information, including the recommendation of the customer, to determine what action to take under FOIA.
Information is proprietary if it is likely to cause substantial harm to the competitive position of the person (customer) from whom the information was obtained. Such information includes unique and innovative alternatives and formulations, legitimate pricing strategy and cost information, clients' names and the associated dollar amounts of the provider's projects with the clients, financial commitments if sufficiently indicative of future pricing conduct, future load data and needs, and load data contained in energy contracts. Additionally, other information may be declared proprietary and therefore withheld if the customer can demonstrate that it is likely to cause substantial harm to its competitive position if released.
WAPA will be required to show that the release of the "proprietary" part of the agency record(s) would in likelihood harm the competitive position of the customer. Information which is not proprietary will be segregated from the document and provided to the requestor. Any portion of the plan which has previously been made public cannot be considered proprietary under FOIA. WAPA will then send any non-proprietary information, with an explanation of how release of the non-disclosed proprietary information would in likelihood harm the competitive position of the customer, to the requestor per FOIA guidelines.
While a customer may request confidential treatment of all or part of an IRP or other documents, WAPA is still required under FOIA to complete the above process. Therefore, a document marked in full or in part confidential or proprietary may not officially meet FOIA guidelines as proprietary information. However, no document or parts of a document will be provided to a requestor without prior customer notification and official review under FOIA.
WAPA will ensure that all IRPs, small customer plans, annual progress reports, small customer plan updates, and other documents are securely maintained and, if requested by the public through an official FOIA process, provided only upon (a) prior notification to and review by the customer, and (b) formal review by WAPA's Freedom of Information Officer.
For more information about submittal and review of an IRP or small customer plan, contact your Regional customer representative. For more information about the Freedom of Information Act, contact Michael S. Hacskaylo, General Counsel and WAPA's Freedom of Information Officer, at 303-275-1800.
Revised January 13, 1997