particularly in light of the fact that it is not authorized by the legislation, and it is not required to make anyof the Siting Board
Moreover, capital costs constitute critically sensitive and proprietary information for wind projects.Because wind energy projects have no fuel costs, capital costs are the key driver of profitability. For acompany like Iberdrola Renewables, which has built a business model that includes turbine inventoriesand market plays, proprietary cost forecasting, and industry-specific expertise, a requirement to reveal itsformula for success would be an unjustified intrusion. For energy developers operating in the competitivesupply markets, detailed cost information is highly confidential, trade secret information that cannot bedisclosed to the public, competitors or third parties.The wind data required by proposed Section 1001.6(d) is proprietary. The data itself does notdemonstrate that adequate wind conditions exist, the demonstration comes from the analysis. Anapplicant can demonstrate that it analyzed the data using state-of-the-art industry practices. Accordingly,the Siting Board should not compel disclosure of the data.Some parties may argue that information can be protected from disclosure under the Freedom ofInformation Law (FOIL) or a protective order under the Department of Public Service (DPS) FOILimplementation regulations,
however, these protections are insufficient. Agencies “may deny access” to
trade secret information, but are not required to protect such information.
While FOIL contains somelimited trade secret protections, the primary purpose is to provide access to government records and areviewing court insensitive to the trade secrets of a wind energy company may be predisposed todisclosure. FOIL is subject to change that may reduce or eliminate protections to the extent they doexist.
Access to the company’s confidential information, be it by accident, by agency determination that
the information should not be protected, by legislation or otherwise would cause extreme unacceptableeconomic harm that cannot be allowed under any circumstances. FOIL protections are incomplete,provide no indemnification against harm stemming from disclosure of the information, and are notguaranteed. Indeed, the proposed regulations make disclosure obligatory; Section 1001.14 flatly states
that “[u]pon the demand of any party or of DPS, the applicant shall supply the work papers,” contrary to
the misleading characterization of the Notice of Proposed Rulemaking, which states that the presiding
examiner “may, if needed, provide for sharing of such information.”
Iberdrola Renewables cannot underemphasize the highly proprietary nature of its calculations of capitalcost and meteorological data. These data represent the most sensitive, proprietary and highlyconfidential information held by our company. It is never divulged to anyone who is not a financial partnerwho has signed a non-disclosure agreement, who has agreed to significant indemnification provisionsand who has the ability to satisfy such indemnifications. Even under such circumstances, the informationwould only be disclosed on a need-to-know basis. None of these conditions are satisfied under theproposed regulations; thus disclosure would be unacceptable to Iberdrola Renewables.the Electricity Supply Market is an Approved Procurement Process Reasonably Consistent with the 2002State Energy Plan, Declaratory Ruling Concerning Approved Procurement Process (Oct. 24, 2002).
16 N.Y.C.R.R. Part 6.
N.Y. POL § 87(2)(d).
Indeed, a recent recommendation to modify FOIL would require commercial enterprises to periodicallyrenew requests for confidentiality. The New York Department of State Committee on Open Government,Report to the Governor and the State Legislature, p. 16 (2011). The risk of such a change resulting indisclosure would be unacceptable.
Notice of Proposed Rulemaking, pp. 10-11.