AUTHORITY: Implementing Section 9-102.1 and authorized by Section 10-101 of the Public Utilities Act [220 ILCS 5/9-102.1 and 10-101].

SOURCE: Emergency rules adopted at 21 Ill. Reg. 4008, effective March 17, 1997, for a maximum of 150 days; adopted at 21 Ill. Reg. 9744, effective July 15, 1997.

SUBPART A: FILING OF CONFIDENTIAL CONTRACTS

 

Section 335.10  Filing of Confidential Contracts

 

a)         Any public utility that files a contract pursuant to a rate schedule that has been approved by the Illinois Commerce Commission ("Commission") and that enables the public utility to provide service to customers under contracts that, pursuant to Section 9-102.1(a) of the Public Utilities Act ("Act") [220 ILCS 5/9-102.1(a)], are treated as proprietary and confidential by the Commission ("contract") shall file two copies of the contract with the Chief Clerk of the Commission in the Springfield office of the Commission.

 

b)         Any public utility that files a contract under subsection (a) of this Section shall also send written notice of such filing to any entity listed as an authorized agency in Section 335.100, and shall include proof of such notice in the filing with the Commission.  The notice shall include the name of the public utility, the date of filing the contract with the Commission and sufficient information to identify the contract.  However, the notice need not contain the name of the customer.

SUBPART B: ACCESS TO CONTRACTS

 

Section 335.100  Access to Confidential Contracts

 

The Attorney General of the State of Illinois, the Citizens Utility Board (see 220 ILCS 10), and the Office of Public Counsel (see 220 ILCS 5/11-201) are authorized agencies ("authorized agency") by Section 9-102.1(d) of the Act and have access to those contracts for the provision of utility services filed by public utilities on a confidential or proprietary basis pursuant to Section 9-102.1(a) of the Act.

 

Section 335.110  Form of Access

 

a)         Except as provided in subsections (b) and (c) of this Section, access to contracts filed pursuant to Section 9-102.1(a) of the Act shall be limited to inspection of the contracts in the offices of the Commission in Chicago or Springfield, provided that the employee or agent of the authorized agency has on file with the Commission a confidentiality agreement as provided in subsections (d) and (e) of this Section.  During the inspection, no copies may be made of any contract filed under Section 9-102.1(a) of the Act.

 

b)         An authorized agency, subject to providing a confidentiality agreement as provided in subsection (d) of this Section, shall be permitted to receive from the public utility one copy of the contract filed pursuant to Section 9-102.1(a) of the Act for review. This copy may be redacted to exclude the name, address and the service address(es) of the customer. The contract shall be provided to the authorized agency within five business days after the later of the effective date of the confidentiality agreement or the request of the authorized agency for such access. In addition, upon the request of the authorized agency, the public utility shall provide the redacted information to the authorized agency within five days after the request.  This information shall be included as information obtained pursuant to the terms of the confidentiality agreement. The authorized agency shall be permitted to retain the contract as provided in Section 335.120. During any period of time while the contract is in the possession of the authorized agency, the contract shall be kept and maintained in accordance with the security procedures specified in Section 335.130. The authorized agency shall permit review of the contract in its possession only by individuals qualified to review such contracts in accordance with subsections (d) and (e) of this Section.

 

c)         An individual employed by the authorized agency either on an independent or  part-time basis ("independent contractor") qualified in accordance with the provisions of subsection (e) of this Section shall be permitted to receive from the authorized agency the authorized agency's copy of the contract filed pursuant to Section 9-102.1(a) of the Act for review at the independent contractor's premises. The contract provided for such review may be redacted to exclude the name, address and the service address(es) of the customer, and to the extent that the redacted information has been made available to the authorized agency pursuant to subsection (b) above, such information may be shared with the independent contractor, provided that the information remains protected under the confidentiality agreement. The independent contractor shall be permitted to retain the contract as provided in Section 335.120. During any period of time the contract is in the possession of the independent contractor, the contract shall be maintained in accordance with the security procedures specified in Section 335.130. The independent contractor shall permit review of the contract in its possession only by individuals qualified to review such contracts in accordance with subsections (d) and (e) of this Section.

 

d)         A full-time employee of an authorized agency who is seeking access to any contract filed pursuant to Section 9-102.1(a) of the Act shall present to the public utility, for filing with the Chief Clerk of the Commission, a signed confidentiality agreement, as set forth in Appendix A, indicating that he/she is a full-time employee of the authorized agency and setting forth the employee's and authorized agency's agreement to maintain the confidential nature of the contract. Such confidentiality agreement shall extend to all information contained in the contract and any information redacted from the contract and subsequently provided by the public utility and shall limit the use of the contract or any included information for purposes of review for compliance with the Act. The form shall be signed by all the full-time employees who are to have access to the contract and shall also be signed by the executive director of the Citizens Utility Board, the Attorney General or his/her designee, or the Public Counsel or his/her designee, as appropriate.

 

e)         In those instances in which the person who is seeking access to contracts is an independent contractor retained or employed by the authorized agency, the independent contractor shall present to the public utility, for filing with the Chief Clerk of the Commission, a signed confidentiality agreement, as set forth in Appendix B, indicating that he/she is an independent contractor employed or retained by the authorized agency and setting forth the independent contractor's agreement to maintain the confidential nature of the contract. Where the authorized agency's copy of the contract is to be provided to the independent contractor for use at his/her premises, the authorized agency shall provide notice of such action to the public utility. In addition to the requirements set forth in subsection (c), the confidentiality agreement shall require the independent contractor to certify that the independent contractor is not, and will not for a period of one year after the date the independent contractor's right to access to the contracts under the confidentiality agreement terminates, provide consulting or other services to a competitor of the public utility or to a customer of the public utility relating to negotiations for a contract for rates for utility services or that are otherwise related in subject matter or scope to the material issues in the contract for which access is sought.  An officer of the public utility that filed the contract must sign the confidentiality agreement indicating the public utility's acquiescence to the independent contractor's access to the contract prior to such access being granted. The public utility shall have 10 business days to respond to the independent contractor's request for access to the contract.

 

f)         Nothing in this Part shall preclude the public utility from seeking appropriate legal redress, including all costs, losses or damages, including attorneys fees, resulting directly or indirectly from disclosure or use of the terms of a contract filed under Section 9-102.1(a) of the Act or information related to such a contract, the disclosure or use of which is in violation of the terms of an agreement executed pursuant to this Section.

 

Section 335.120  Scope and Duration of Access

 

a)         An agreement authorizing access to a contract subject to this Part shall be effective for only that contract. The access so granted shall be valid for the earliest of:

 

1)         one year from the effective date of any such agreement; or

 

2)         the date on which the employment or consulting contract with the authorized agency of the person so granted access is terminated; or

 

3)         the date on which the public utility terminates the access of the person for cause in accordance with Section 335.140.

 

b)         The confidentiality requirements stated in an agreement authorizing access to the contract subject to this Part shall permanently remain in effect unless, until, and to the extent that, the information contained in the contract becomes part of the public domain otherwise than through a breach of the confidentiality agreement by a party authorized to have access to the contract pursuant to this Part.

 

c)         Subject to the effectiveness of a valid confidentiality agreement and compliance with the provisions of this Part, the authorized agency shall be permitted to retain the contract for a period of 90 days from the date on which the public utility provides the contract to the authorized agency ("retention period"). The authorized agency may request and obtain one extension for an additional 90 day period by notifying the public utility and requesting the extension, subject to a valid confidentiality agreement and the other provisions of this Part. At the termination of the retention period and any extension, the contract shall be returned to the public utility that provided the contract.

 

d)         After the retention period and any extension, an authorized agency shall, upon request, be granted one additional 90 day period to have the contract at its premises, at any time during the duration of the contract, subject to a valid confidentiality agreement and subject to all the restrictions as set forth in this Part.

 

e)         Access to the contract subject to this Part shall be permitted at any time during the term of the contract in the offices of the Commission in Chicago and Springfield, subject to a valid confidentiality agreement and all the provisions of this Part.

 

Section 335.130  Security for Contracts

 

All copies of the contracts provided to authorized agencies pursuant to this Part shall be marked by the public utility in such manner to identify the copies as copies provided to that agency and shall be maintained at all times, while in the possession of the authorized agency or an independent contractor retained by an authorized agency, in a locked or secured location and not available to anyone other than those individuals who have signed the confidentiality agreements. The authorized agency, part-time employee, or independent contractor shall not duplicate or reproduce in any manner the contract provided under this Part.

 

Section 335.140  Enforcement

 

a)         In those instances in which the contract provided pursuant to Section 335.110 is duplicated or the information contained in the contract is used in violation of the terms of the confidentiality agreement, the authorized agency responsible for maintaining the confidential nature of the contract shall lose its privileges to have the copies provided at its office, pursuant to Section 335.110(b) and (c), for a period of one year. The authorized agency would then only be able to view such contracts in the offices of the Commission during that one year interim period as provided in Section 335.110(a). If the public utility has a reasonable belief that the contract, provided pursuant to Section 335.110 to an authorized agency, was duplicated or the information contained in the contract was used in violation of the terms of the agreement, the public utility shall give notice to the authorized agency and the Commission of the circumstances and the public utility may discontinue providing copies of further contracts to such authorized agency for one year or until the authorized agency shows to the satisfaction of the public utility or the Commission that the authorized agency was at all times relevant in full compliance with the terms and conditions of the confidentiality agreement and this Part.

 

b)         The unauthorized copying of the contract or the unauthorized disclosure by an independent contractor of the information contained in the contract filed pursuant to Section 9-102.1(a) of the Act shall be good cause for a public utility to find such person unacceptable for access to future contracts subject to provisions of Section 335.150.

 

c)         The unauthorized copying of the contract or the unauthorized disclosure by the independent contractor of the information contained in the contract filed pursuant to Section 9-102.1(a) of the Act shall constitute good cause for the public utility to terminate access to the contract currently in the possession of such independent contractor.

 

Section 335.150  Contested Access

 

Should the public utility refuse to acquiesce to the independent contractor's request for access to the contract, the authorized agency may file a petition under the Commission's Rules of Practice (83 Ill. Adm. Code 200) seeking a finding by the Commission pursuant to Section 9-102(d)(ii) of the Act that the independent contractor is acceptable to have access to the contract pursuant to this Part. The petition shall name the public utility as the respondent.




Section 335.APPENDIX A   Agreement for Full-time Employees of Authorized Agencies

 

AGREEMENTS UNDER SECTION 9-102.1 OF THE PUBLIC UTILITIES ACT

 

ACCESS FOR FULL-TIME EMPLOYEES OF THE ATTORNEY GENERAL OF

THE STATE OF ILLINOIS, THE CITIZENS UTILITY BOARD AND

THE OFFICE OF PUBLIC COUNSEL

 

Section 1 (must be completed)

 

1.         The undersigned are full-time employee(s) of the [Citizens Utility Board] [Office of the Attorney General] [Office of Public Counsel] (the authorized agency) and enter into this confidentiality agreement in connection with access to a certain contract identified as ___________ (contract) which (utility), an Illinois public utility, has filed with the Illinois Commerce Commission on a confidential basis pursuant to Section 9-102.1 of the Public Utilities Act. The effective date of this agreement is ______________.  The undersigned agrees not to copy, duplicate, or reproduce in any manner the contract and not to use the information contained in the contract for purposes other than reviewing it for compliance with the Public Utilities Act [220 ILCS 5]. The undersigned also agrees to keep the contract and all information contained therein, and any information redacted in accordance with 83 Ill. Adm. Code 335.110(b) or (c) confidential, and not to divulge the terms of the contract or any confidential information coming to my knowledge from the contract to any person other than a person authorized to receive access to such confidential contract pursuant to Section 9-102.1 of the Public Utilities Act who has executed a confidentiality agreement pursuant to 83 Ill. Adm. Code 335 (Part 335) with respect to the contract. The undersigned agrees that he/she/they have reviewed and understand and will comply fully with the provisions of Part 335.

 

2.         If the authorized agency receives a copy of the contract for review in accordance with 83 Ill. Adm. Code 335.110(b), the undersigned agrees that, at the earlier of the end of the retention period (as defined in 83 Ill. Adm. Code 335.120(c)) or such extended or additional period as is permitted under 83 Ill. Adm. Code 335.120(c) or (d); or the date that the undersigned's right of access to the contract terminates in accordance with Paragraph 3 below, the authorized agency shall return the contract to the utility.

 

3.         The confidentiality requirements stated in this agreement shall remain permanently in effect unless, until, and to the extent that the information contained in the contract becomes part of the public domain otherwise than through the breach of a confidentiality agreement by a party authorized to have access to the contract pursuant to Part 335. Access to the contract shall be permitted by this agreement until the earliest of (i) one year from the effective date; (ii) the date on which the full-time employment of the undersigned with the authorized agency is terminated; or (iii) (with respect to access to a copy for review at the office of the authorized agency pursuant to 83 Ill. Adm. Code 335.110(b) only) the date on which access terminates in accordance with 83 Ill. Adm. Code 335.140.

 

Full Time Employees:

 

Signature:	Name & Title:	Date

 

Section 2 (must be completed)

 

I, __________________, the [Executive Director of the Citizens Utility Board] [Attorney General or his/her designee] [Public Counsel or his/her designee], hereby certify that the person(s) named above is (are) a full-time employee(s) of the authorized agency. The authorized agency agrees not to copy or duplicate the contract and not to use the information contained in the contract for purposes other than for reviewing it for compliance with the Public Utilities Act [220 ILCS 5]. The authorized agency also agrees to keep this agreement, the contract and all information contained therein, and any information redacted in accordance with 83 Ill. Adm. Code 335.110(b) or (c), confidential, and not to divulge the terms of the contract or any confidential information which is the subject of this agreement to any person other than a person authorized to receive access to such confidential contracts pursuant to Section 9-102.1 of the Public Utilities Act who has executed a confidentiality agreement pursuant to Part 335 with respect to the contract.

 

Dated:

 

Signature

 

Title

 

Section 3 (must be completed)

 

I, ________________________________ an officer of___________________________, an Illinois public utility, agree that the foregoing terms are consistent with the provisions of 83 Ill. Adm. Code 335, and thus forward this agreement to the Chief Clerk of the Illinois Commerce Commission in accordance with 83 Ill. Adm. Code 335.110(d).

 

Dated:

 

Signature

 

Title




Section 335.APPENDIX B   Agreement for Part-time Employees or Independent Contractors of Authorized Agencies

 

ACCESS FOR PART-TIME EMPLOYEES OR INDEPENDENT CONTRACTORS

RETAINED BY THE ATTORNEY GENERAL OF THE STATE OF ILLINOIS,

THE CITIZENS UTILITY BOARD OR THE OFFICE OF PUBLIC COUNSEL

 

Section 1 (must be completed)

 

1.         I, _______________________, enter into this agreement for the purpose of receiving access to a certain contract identified as _____________________ (contract) which (utility), an Illinois public utility, has filed with the Illinois Commerce Commission on a confidential basis pursuant to Section 9-102.1 of the Public Utilities Act.  The effective date of this agreement (effective date) is ____________________.  I am a part-time employee of or independent contractor (independent contractor) employed/retained by the [Citizens Utility Board] [Office of the Attorney General] [Office of Public Counsel] (the authorized agency), and I hereby agree not to copy or duplicate the contract and not to use the information contained in the contract for purposes other than for reviewing it for compliance with the Public Utilities Act [220 ILCS 5]. I agree to keep the contract and all information contained therein, and any information redacted in accordance with 83 Ill. Adm. Code 335.110(b) or (c), confidential; and not to divulge the terms of the contract or any information coming to my knowledge from the contract to any person other than a person authorized to have access to the contract pursuant to Section 9-102.1 of the Public Utilities Act who has executed a confidentiality agreement pursuant to 83 Ill. Adm. Code 335 with respect to the contract.

 

2.         I certify that I am not currently providing and will not provide, for a period of one year from the date that my right of access to the contract under this agreement terminates, consulting or other services to a competitor of the utility or a customer of the utility which consulting or other services relate to negotiations for a contract for rates for utility service or otherwise relate in subject matter or scope to material terms of the contract.

 

3.         I understand that, if I breach this confidentiality agreement, the utility may bring a legal action seeking recovery of all costs, losses or damage, including attorneys' fees, resulting directly or indirectly from disclosure or use of any information contained in the contract in violation of this agreement.

 

4.         Access to the contract shall be permitted by this agreement until the earliest of: (i) one year from the effective date; (ii) the date on which my employment or consulting contract with the authorized agency is terminated; or (iii) the date on which the utility terminates my right of access to the contract for cause in accordance with 83 Ill. Adm. Code 335.140.

 

5.         The confidentiality requirements stated in this agreement shall remain permanently in effect unless, until and to the extent that information contained in the contract becomes part of the public domain otherwise than through the breach of a confidentiality agreement by a party authorized to have access to the contract pursuant to 83 Ill. Adm. Code 335 (Part 335).

 

6.         If I receive the authorized agency's copy of the contract for review at my premises in accordance with 83 Ill. Adm. Code 335.110(c), I agree to maintain the contract in a locked or secured location and to ensure that the contract is not made available to anyone other than individuals who are authorized by the provisions of Part 335 to review the contract and who have executed a confidentiality agreement pursuant to Part 335 with respect to the contract. I agree not to duplicate or reproduce the contract in any manner. I further agree that, at the earlier of the end of the retention period (as defined in 83 Ill. Adm. Code 335.120(c)) or such extended or additional period as is permitted under 83 Ill. Adm. Code 335.120(c) or (d); or the date that my right of access to the contract terminates in accordance with Paragraph 4 above, I will return the contract to the authorized agency for return to the public utility.

 

7.         I acknowledge that I have reviewed the provisions of Part 335 and that I understand and will fully comply with those provisions.

 

8.         The utility may make a reasonable inquiry into the facts required to establish that I have implemented and enforced reasonable procedures to ensure that the terms and conditions of this agreement are fully complied with and I agree to furnish the utility with the information that is reasonably necessary to conduct such an inquiry.  If, as a result of such inquiry, the utility has reason to believe that I am failing to comply with this agreement, the utility may take such action as it determines is necessary to protect its interests, including, but not limited to, terminating this agreement and directing the return of all contracts provided pursuant to this agreement.

 

Dated:

 

Signature

 

Title

 

Section 2 (must be completed)

 

I, ___________________________________, the/a [Executive Director of the Citizens Utility Board] [Attorney General or his/her designee] [Public Counsel or his/her designee], hereby certify that the person whose signature appears above is a part-time employee of or an independent contractor employed/retained by the authorized agency.  The authorized agency agrees not to copy or duplicate the contract and not to use the information contained in the contract for purposes other than for reviewing it for compliance with the Public Utilities Act [220 ILCS 5]. The authorized agency also agrees to keep this agreement, the contract and all information contained therein, and any information redacted in accordance with 83 Ill. Adm. Code 335.110(b) or (c), confidential, and not to divulge the terms of the contract or any confidential information which is the subject of this agreement to any person other than a person authorized to receive access to such confidential contracts pursuant to Section 9-102.1 of the Public Utilities Act who has executed a confidentiality agreement pursuant to 83 Ill. Adm. Code 335 with respect to the contract.

 

Dated:

 

Signature

 

Title

 

Section 3 (must be completed)

 

I, ____________________________, an officer of_____________________________, an Illinois public utility, state that the person whose name appears in Section 1 is acceptable for purposes of being given access to the contract pursuant to the terms of this agreement, and that this agreement should be filed with the Chief Clerk of the Illinois Commerce Commission in accordance with 83 Ill. Adm. Code 335.110(d).

 

Dated:

 

Signature

 

Title