Discussion of Issues
Issue 1:
Should the Commission grant FAIR’s Motion for
Reconsideration of the Final Order Denying Confidential Classification?
Recommendation:
No. FAIR’s Motion for Reconsideration should be
denied because it does not meet the required standard for a motion for
reconsideration. FAIR has failed to identify a point of fact or law that was
overlooked or that the Prehearing Officer failed to consider in rendering Order
No. PSC-2021-0299-PCO-EI, the Order Denying FAIR’s Request for Confidential
Classification of Document Nos. 06506-2021 and 08288-2021. (Lherisson)
Staff
Analysis:
Standard
of Review
Pursuant
to Rule 25-22.0376, F.A.C., any party adversely affected by a non-final order
may seek reconsideration by the Commission by filing a motion within ten days
after issuance of the order. The appropriate standard of review in a motion for
reconsideration is whether the motion identifies a point of fact or law that
was overlooked or that the Prehearing Officer failed to consider in rendering the
Order. See Steward Bonded Warehouse, Inc. v. Bevis, 294 So. 2d
315 (Fla. 1974); Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962);
and Pingree v. Quaintance, 394 So. 2d 161 (Fla. 1st DCA 1981). In a motion for reconsideration, it is not
appropriate to reargue matters that have already been considered. Sherwood
v. State, 111 So. 2d 96 (Fla. 3rd DCA 1959); citing State ex. rel.
Jaytex Realty Co. v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958). Furthermore, a motion for reconsideration
should not be granted “based upon an arbitrary feeling that a mistake may have
been made, but should be based upon specific factual matters set forth in the
record and susceptible to review.” Steward Bonded Warehouse, 294 So. 2d
315, 317 (Fla. 1974).
FAIR’s
Motion for Reconsideration
By Order
No. PSC-2021-0299-PCO-EI, the Prehearing Officer denied confidential
classification for the information contained in FAIR’s responses to FPL’s First
Request for Production of Documents No. 4 and in Exhibit NHW-3 to the testimony
of FAIR’s witness Nancy H. Watkins. In its Motion for Reconsideration, FAIR
argues that the Prehearing Officer failed to consider or “misapprehended the
factual nature of the information for which FAIR seeks confidential
classification, which FAIR submits is, on its face, the ‘sensitive personally
identifiable information’ of FAIR’s members.” FAIR asserts that the “Order
overlooked, as a point of law, that FAIR’s requests for confidential
classification fall squarely within the scope of, and satisfy, the basic
requirements of Section 366.093, [F.S.].”
FAIR
asserts that the two sets of its “membership rosters,” for which
confidentiality was requested, include “the members’ names, mailing street
addresses, email addresses, business address if applicable, and (for a
significant number of members), telephone numbers.” FAIR argues that Order No.
PSC-2021-0299-PCO-EI “overlooked the relevant legal facts that FAIR’s claims
are squarely within the non-exclusive scope of Section 366.093, [F.S.], and
that FAIR’s assertion that its membership roster comprises FAIR’s trade secret
information should result in the Commission granting confidential
classification as requested.” FAIR states, in part, that “[w]hile more detail
might have been desirable, FAIR believes and respectfully submits that the
information for which confidential protection is sought qualifies on its face
as appropriately protected confidential information. . . .” FAIR argues that its “allegations provide
sufficient bases upon which the Commission should grant the requested
treatment.” FAIR asserts that the Commission should consider the harms that
would result from denial of confidential classification:
First, the information in FAIR’s membership rosters
is, for all practical purposes, a mailing list with the members’
street addresses and email addresses, and denial of FAIR’s Requests would
result in making FAIR’s members being exposed to direct mailings and e-mailings.
Second, disclosing FAIR’s membership roster, which is directly analogous to the
“list of customers” that is expressly within the scope of protected, or at
least protect-able, information under Section 812.081, Florida Statutes, would
harm FAIR’s interests in conducting its business operations by revealing its
members’ sensitive personal confidential information contrary to FAIR’s policy
not to disclose it and also by exposing FAIR to the consequences of anyone
using FAIR’s membership roster – the equivalent of a customer list – to
directly contact members for whatever reasons anyone gaining access to the list
might have.
FAIR
argues that its “membership roster is, for all practical purposes, and on its
face, the equivalent of a ‘list of customers,’ which is one of the identified
types of trade secret information in Section 812.081, [F.S.].” FAIR asserts
that “FAIR’s declarant stated that the information contains FAIR’s trade
secrets” and that FAIR has a “policy not disclosing this information.” FAIR
argues that its membership roster “is FAIR’s trade secret information, the
disclosure of which would harm FAIR’s operations, by disclosing FAIR’s members’
personal information to unauthorized persons and likely by impairing FAIR’s
ability to recruit members.” FAIR alleges that it treats the membership lists
as confidential proprietary information, and that it constitutes FAIR’s trade
secret information; therefore, FAIR requests that the Commission grant
reconsideration of the Order Denying Confidential Classification and grant the
requested confidential classification of its membership lists.
Parties’
Response to Motion
No party
to this docket has filed a response in support or opposition to FAIR’s Motion,
and the time for doing so has expired. On August 17, 2021, FAIR filed a Notice
of Conferral Regarding Motion for Reconsideration stating
that FAIR conferred with the parties to this docket as required by Rule
28-106.204(3), F.A.C.; however the conferral occurred after the Motion was
filed. The parties’ responses as reflected in FAIR’s Notice of Conferral are as
follows: (1) FPL agrees with the Commission’s order and does not believe that
FAIR has met the standard for reconsideration; (2) the Florida Retail
Federation, the Federal Executive Agencies, Vote Solar, the Southern Alliance
for Clean Energy, and the CLEO Institute support FAIR’s Motion; and (3) Daniel
and Alexandria Larson, the Office of Public Counsel, the Florida Industrial
Power Users Group, Florida Rising, League of United Latin American Citizens of
Florida, Environmental Confederation of Southwest Florida, the Florida Internet
and Television Association, and Walmart take no position on FAIR’s motion.
Analysis
In denying
confidential treatment to FAIR’s responses to FPL’s First Request for
Production of Documents No. 4 and Exhibit NHW-3 to the testimony of FAIR’s
witness Nancy H. Watkins, the Prehearing Officer found that the information was
not proprietary confidential business information. Specifically, the Prehearing
Officer stated:
Although FAIR asserts in its
Corrected Request and Second Request that the documents are proprietary
confidential business information, FAIR fails to provide any details on how the
documents contain information relating to trade secrets and competitive
interests, the disclosure of which would impair the competitive business of the
provider of the information. Nor does
FAIR explain what its competitive business interests are that would be harmed
should the information be disclosed.
Order No.
PSC-2021-0299-PCO-EI, p.3.
With one
exception, the points raised by FAIR in its Motion are rearguments of the
positions stated in FAIR’s Requests for confidential classification, which the
Prehearing Officer ruled upon. Thus, the points are reargument, and are not
proper matters to be raised in a motion for reconsideration. Staff believes
that one point raised by FAIR merits discussion. FAIR claims that the
Prehearing Officer failed to consider that FAIR’s “membership roster” is
“directly analogous to the ‘list of customers’ that is expressly within the
scope of protected, or at least protect-able, information under Section
812.081, [F.S.].” FAIR did not reference Section 812.081, F.S., in its
Requests, but instead makes the reference for the first time in its Motion.
Upon review of Section 812.081, F.S., staff believes that the Commission is not
bound by Section 812.081, F.S., which is the definitions and penalty statute
dealing with theft, robbery, and related crimes. Even if this argument was
raised in FAIR’s initial Requests, staff would have recommended that the
Commission deny FAIR’s Requests for confidential classification because the
Commission is not authorized to enforce the provisions of Chapter 812, F.S.,
Theft, Robbery, and Related Crimes.
Instead the Commission is bound by Chapter 366, F.S., Public Utilities, to
determine what qualifies as proprietary confidential business information under
Section 366.093, F.S.
Trade
Secret
The
Florida Legislature has exempted trade secrets from the public records law,
because “the public and private harm in disclosing trade secrets significantly
outweighs any public benefit derived from disclosure, and the public’s ability
to scrutinize and monitor agency action is not diminished by nondisclosure of
trade secrets.” Staff
notes that neither Section 366.093, F.S., nor Rule 25-22.006, F.A.C., provide a
definition as to what constitutes a trade secret. “A
customer list can constitute a ‘trade secret’ where the list is acquired or
compiled through the industry of the owner of the list and is not just a
compilation of information commonly available to the public.” E. Colonial
Refuse Serv., Inc. v. Velocci, 416 So. 2d 1276, 1278 (Fla. 5th DCA 1982). Chapter
688, Uniform Trade Secrets Act, Section 688.002(4), F.S., states:
“Trade secret” means information,
including a formula, pattern, compilation, program, device, method, technique,
or process that: (a) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its
disclosure or use; and (b) Is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy.
See
also Templeton v. Creative Loafing Tampa, Inc., 552 So. 2d 288 (Fla.
2d DCA 1989) (considering, in deciding whether a customer list is a trade
secret, whether the list is product of great expense and effort and is
confidential); Dicks v. Jensen, 768 A. 2d 1279 (Vt. 2001) (stating that a
list of potential or existing customers which is not readily ascertainable has
value and can be a trade secret). In East v. Aqua Gaming, Inc,
the Second District Court of Appeal of Florida held that there was enough
evidence to support a finding that a corporation’s customer list was trade
secret, where the corporation showed that the “customer list was the product of
great expense and effort, that it included information that was confidential
and not available from public sources, and that it was distilled from larger
lists of potential customers into a list of viable customers for [a] unique
business.”
Given that
FAIR is adamant about maintaining that its membership lists are immune to
disclosure, it is incumbent upon FAIR to demonstrate that the lists constitute
trade secrets. See New York State Businessmen’s Group, Inc. v. Dalton,
154 A.D. 2d 801, 801 (1989); and Herbst by Herbst v. Bruhn, 106 A.D. 2d
546, 549 (1984). To meet its burden, FAIR offers conclusory statements,
contained in FAIR’s declarant statement, declaring that the lists are
“proprietary confidential business information” that “contain FAIR’s trade
secrets and competitive business information,” which is insufficient. See Rooney
v. Hunter, 26 A.D. 2d 891, 891, 274 N.Y.S. 2d 376 (1966) (holding that a
statement of appellant’s attorney, made upon information and belief, that the
contents of appellant’s product is a trade secret, is insufficient to establish
such fact). Staff believes that FAIR’s mere assertion that its membership
roster comprises FAIR’s trade secret information is not enough to persuade the
Commission to grant confidential classification as requested. Staff believes
that FAIR has failed to provide any details which demonstrates how the
documents contain information relating to trade secrets and competitive
interests, the disclosure of which would impair the competitive business of the
provider of the information.
Public
Record
Chapter
119, F.S., Florida’s Public Records Law, establishes a statutory right of
access to records of agencies made or received pursuant to law or ordinance or
in connection with the transaction of official business. Rule 25-22.006(4)(c),
F.A.C., implementing applicable statutes within the rule, provides that the
utility or other person shall “demonstrate how the information asserted to be
confidential qualifies as one of the statutory examples listed in Section
364.183(3), 366.093(3) or 367.156(3), F.S.,” or the utility or other person
must explain how “the ratepayers or the person’s or utility’s business
operations will be harmed by disclosure.” Section 119.01, F.S., provides that
documents submitted to governmental agencies shall be public records. As
provided by Section 119.071, F.S., certain information maintained by state
agencies is exempt from public disclosure, and is therefore deemed
confidential. This includes social security numbers, and medical and financial
information. Section 119.071(4)(d), F.S., additionally provides for the
exemption of home addresses and telephone numbers from public disclosure for
certain occupational groups, such as, but not limited to: active and former law
enforcement personnel, correctional probation officers, Department of Health
personnel, Judges, Magistrates, public defenders, etc. However, FAIR has not demonstrated
how the information asserted to be confidential qualifies as confidential under
any statute or applicable rule, much less provided any information to indicate
that its membership list contains the telephone number or home address of those
exempt from public disclosure under Section 119.07, F.S.
Pursuant to Section 668.6076, F.S. “[u]nder Florida law,
e-mail addresses are public records.” In accordance with that statute, the
Florida Public Service Commission website states, in part, that “[i]nformation
submitted through this Web site may be subject to disclosure pursuant to a
public records request.” The
Government-in-the Sunshine Manual (2021) states:
In the absence of [a] statutory exemption, home
addresses, telephone numbers, photographs, and dates of birth of public
officers and employees are not exempt from disclosure. See [Florida
Attorney General Advisory Legal Opinion] AGO 96-88 (home addresses and
telephone numbers and business addresses and telephone numbers of members of
state and district human rights advocacy committees are public records); Browning
v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city cannot refuse to allow
inspection of records containing the names and addresses of city employees who
have filled out forms requesting that the city maintain the confidentiality of
their personnel files). And see United Teachers of Dade v. School
Board of Dade County, No. 92-17803 (01) (Fla. 11th Cir. Ct. Nov. 30, 1992)
(home telephone numbers and addresses of school district employees not
protected by constitutional right to privacy; only the Legislature can exempt
such information). Cf. AGO 85-03 (list containing names and addresses of
subscribers to state magazine is a public record).
Additionally,
in a case that staff believes is analogous to FAIR’s Requests, the Florida
Attorney General issued Advisory Legal Opinion AGO 85-03, regarding the
applicability of public records law on the mailing list of a state magazine,
stating that:
The Federal Privacy Act of 1974
does not require the exclusion of the name and address of a private citizen at
the request of the affected private citizen from such public records of the
Game and Fresh Water Fish Commission as may be furnished pursuant to Ch. 119,
F.S., since the commission is not [a] [Federal] “agency” within the meaning of
that act nor is the commission authorized to sell or rent such names and
addresses as may be contained in such public records.
In AGO
85-03, the Attorney General made reference to Public Law 93-579,
quoting “(n) Mailing lists.--An individual’s name and address may not be sold
or rented by an agency unless such action is specifically authorized by law.
This provision shall not be construed to require the withholding of names and
addresses otherwise permitted to be made public.” The Florida Attorney General
further opined in Advisory Legal Opinion AGO 96-88 that “[i]n the absence of an
exemption removing such information from disclosure under Chapter 119, [F.S.],
the home addresses and telephone numbers and the business addresses and
telephone numbers of members of [non-personnel of a state agency] are public
records.” Therefore, staff believes that the information FAIR asserts to be
confidential does not qualify as confidential under the statute or applicable
rule.
Conclusion
The
purpose of reconsideration is to bring to the Commission’s attention a specific
point that, had it been considered when presented in the first instance, would
have required a different decision. State
ex. rel. Jaytex Realty Co. v. Green, 105 So. 2d 817, 819 (Fla. 1st
DCA 1958) (Wigginton, J., concurring); Sherwood v. State, 111 So. 2d 96 (Fla. 3rd DCA 1959).
In the
Order Denying FAIR’s Requests for Confidential Classification,
the Prehearing Officer considered FAIR’s assertions that the information: is
FAIR’s trade secrets and competitive business information; is protected by
Section 366.093(3)(a) and (e), F.S.; is intended to be and is treated as private
confidential information by FAIR; has not been voluntarily disclosed to the
public; and disclosure would cause harm to FAIR’s business operation and its
members. In review of all of FAIR’s claims, the Prehearing Officer denied
FAIR’s Requests for Confidential Classification because FAIR failed to
establish: (1) how the documents contained information relating to trade
secrets and competitive interests, the disclosure of which would impair the
competitive business of the provider of the information; (2) what its
competitive business interests are that would be harmed should the information
be disclosed; and (3) how the information asserted to be confidential qualifies
as confidential under the statute or applicable rule.
In FAIR’s
Motion for Reconsideration, FAIR reargued, with the exception discussed above,
the same points raised in its Requests. Staff
has reviewed all arguments raised by FAIR in FAIR’s Motion, and staff believes
that FAIR has not brought to the Commission’s attention any specific point
that, had it been considered when presented in the first instance, would have
required a different decision. Based on the information provided in FAIR’s
Requests and Motion, staff believes that FAIR has not demonstrated how the
information asserted to be confidential qualifies as confidential under the
statute or applicable rule. Staff recommends that FAIR’s Motion for
Reconsideration be denied because it fails to identify a point of law the
Prehearing Officer overlooked or failed to consider by issuing Order No.
PSC-2021-0299-PCO-EI.
Issue 2:
Should this docket be closed?
Recommendation:
No. This docket
should remain open for the Commission to address the pending rate case
proceeding. (Lherisson)
Staff Analysis:
This docket should
remain open for the Commission to address the pending rate case proceeding.
