Virginia Administrative Code › Title 5 - CORPORATIONS › Agency 5 - STATE CORPORATION COMMISSION, CLERK'S OFFICE › Chapter 20 - STATE CORPORATION COMMISSION RULES OF PRACTICE AND PROCEDURE › Part III - Procedure in Formal Proceedings › Section 5VAC5-20-170 - Confidential information

Current through Register Vol. 40, No. 24, July 15, 2024
A person who proposes in good faith in a formal proceeding
					 that information to be filed with or delivered to the commission be withheld
					 from public disclosure on the ground that it contains trade secrets,
					 privileged, or confidential commercial or financial information shall file this
					 information under seal with the Clerk of the Commission, or otherwise deliver
					 the information under seal to the commission staff, or both, as may be
					 required. Items filed or delivered under seal shall be securely sealed in an
					 opaque container that is clearly labeled "UNDER SEAL," and, if filed, shall
					 meet the other requirements for filing contained in these rules. An original
					 and 15 copies of all such information shall be filed with the clerk. One
					 additional copy of all such information shall also be delivered under seal to
					 the commission staff counsel assigned to the matter, or, where no counsel has
					 been assigned, to the general counsel who, until ordered otherwise by the
					 commission, shall disclose the information only to the members of the
					 commission staff directly assigned to the matter as necessary in the discharge
					 of their duties. Staff counsel and all members of the commission staff, until
					 otherwise ordered by the commission, shall maintain the information in strict
					 confidence and shall not disclose its contents to members of the public, or to
					 other staff members not assigned to the matter. The commission staff or any
					 party may object to the proposed withholding of the information.
When an application (including supporting documents and
					 prefiled testimony) contains information that the applicant claims to be
					 confidential, the filing shall be made under seal and accompanied by a motion
					 for protective order or other confidential treatment. The provision to a party
					 of information claimed to be trade secrets, privileged, or confidential
					 commercial or financial information shall be governed by a protective order or
					 other individual arrangements for confidential treatment.
On every document filed or delivered under seal, the
					 producing party shall mark each individual page of the document that contains
					 confidential information, and on each such page shall clearly indicate the
					 specific information requested to be treated as confidential by use of
					 highlighting, underscoring, bracketing or other appropriate marking. All
					 remaining materials on each page of the document shall be treated as
					 nonconfidential and available for public use and review. If an entire document
					 is confidential, or if all information provided in electronic format under Part
					 IV (5VAC5-20-240 et seq.) of these
					 rules is confidential, a marking prominently displayed on the first page of
					 such document or at the beginning of any information provided in electronic
					 format, indicating that the entire document is confidential shall
					 suffice.
Upon challenge, the information shall be treated as
					 confidential pursuant to these rules only where the party requesting
					 confidential treatment can demonstrate to the satisfaction of the commission
					 that the risk of harm of publicly disclosing the information outweighs the
					 presumption in favor of public disclosure. If the commission determines that
					 the information should be withheld from public disclosure, it may nevertheless
					 require the information to be disclosed to parties to a proceeding under
					 appropriate protective order.
Whenever a document is filed with the clerk under seal, an
					 original and one copy of an expurgated or redacted version of the document
					 deemed by the filing party or determined by the commission to be confidential
					 shall be filed with the clerk for use and review by the public. A document
					 containing confidential information shall not be submitted electronically. An
					 expurgated or redacted version of the document may be filed electronically.
					 Documents containing confidential information must be filed in hardcopy and in
					 accordance with all requirements of these rules. Upon a determination by the
					 commission or a hearing examiner that all or portions of any materials filed
					 under seal are not entitled to confidential treatment, the filing party shall
					 file one original and one copy of the expurgated or redacted version of the
					 document reflecting the ruling.
When the information at issue is not required to be filed
					 or made a part of the record, a party who wishes to withhold confidential
					 information from filing or production may move the commission for a protective
					 order without filing the materials. In considering such a motion, the
					 commission may require production of the confidential materials for inspection
					 in camera, if necessary.
A party may request additional protection for
					 extraordinarily sensitive information by motion filed pursuant to
					 5VAC5-20-110, and filing the
					 information with the Clerk of the Commission under seal and delivering a copy
					 of the information to commission staff counsel under seal as directed above.
					 Whenever such treatment has been requested under Part IV of these rules, the
					 commission may make such orders as necessary to permit parties to challenge the
					 requested additional protection.
The commission, hearing examiners, any party and the
					 commission staff may make use of confidential material in orders, filing
					 pleadings, testimony, or other documents, as directed by order of the
					 commission. When a party or commission staff uses confidential material in a
					 filed pleading, testimony, or other document, the party or commission staff
					 must file both confidential and nonconfidential versions of the pleading,
					 testimony, or other document. Confidential versions of filed pleadings,
					 testimony, or other documents shall clearly indicate the confidential material
					 contained within by highlighting, underscoring, bracketing or other appropriate
					 marking. When filing confidential pleadings, testimony, or other documents,
					 parties must submit the confidential version to the Clerk of the Commission
					 securely sealed in an opaque container that is clearly labeled "UNDER SEAL."
					 Nonconfidential versions of filed pleadings, testimony, or other documents
					 shall expurgate, redact, or otherwise omit all references to confidential
					 material.
The commission may issue such order as it deems necessary
					 to prevent the use of confidentiality claims for the purpose of delay or
					 obstruction of the proceeding.
A person who proposes in good faith that information to be
					 delivered to the commission staff outside of a formal proceeding be withheld
					 from public disclosure on the ground that it contains trade secrets,
					 privileged, or confidential commercial or financial information may deliver the
					 information under seal to the commission staff, subject to the same protections
					 afforded confidential information in formal proceedings.
Statutory Authority
§§ 12.1-13 and 12.1-25 of the Code of Virginia.