Ruling: ESCO Charge Data Provided to PSC by Utilities Not A “Trade Secret” Under the New York Freedom of Information Law

In a ruling issued March 27, 2014, the Department of Public Service Records Access Officer rejected an effort of ESCOs to block release of price comparison data provided by utilities to the Commission.  For background, see ESCOS OPPOSE RELEASE OF ELECTRIC AND GAS BILL COMPARISONS, New York Utility Project, March  14, 2014.

The Records Access Officer, in a thorough opinion, rejected claims of ESCOs that their historical prices, and comparison of those prices with default service prices of the utilities for customers who do not switch to ESCOs, is a “trade secret” as defined in the state’s Freedom of Information Law, stating:

“Even if a slight degree of competitive injury could be shown, such demonstration would not rise to the level of substantial competitive injury.  Moreover, any de minimis harm would be outweighed both by the general policy favoring disclosure and the Commission’s specific policy favoring transparency in the retail access market.”

Many gas and electric customers have been switching to ESCOs based on advertising and hard sell phone and door to door solicitations, with promises of what turns out to be slight short term savings, followed by variable charges that often substantially exceed what the utility would have charged had they not switched.  The Utility Project obtained release of some of that data in the 2012 Niagara Mohawk rate case, which is the most extensive comparison of ESCO and utility prices available publicly.

The Commission’s subsequent orders in its generic  Retail Energy Markets investigation case indicated it received data from the utilities, who have it because they buy receivables from ESCOs and collect charges based on ESCO prices from the ESCO customers, as if they are ordinary utility charges.

The Utility Project believes that many lower income households face added economic hardship, additional arrears, additional shutoff threats, and more shutoffs as a consequence of being billed more for ESCO service.  The new data, when provided, may shed more light on the situation.

Update

On April 1, 2014, the request of ESCOs for additional time to appeal the ruling requiring release of price comparison data was granted and an extension was given until April 17, 2014.

Gerald A. Norlander

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