# Title 69 — Public Service Commission

## Article 69-02 — Practice and Procedure

## Chapter 69-02-09 — Procedures for Protecting Information from Disclosure

### § 69-02-09-01. Application to protect information.

Except as provided in section 69-02-09-13, a person requesting protection of information in an
administrative proceeding or in a response to a commission request for information shall file an
application with the commission. The application must include at least the following:
1. A general description of the nature of the information sought to be protected.
2. The specific law or rule on which protection is based.
3. If the basis for protection is that the information is trade secret:
a. An explanation of why the information derives independent economic value, actual or
potential, from not being generally known to other persons;
b. An explanation of why the information is not readily ascertainable by proper means by
other persons;
c. A general description of the persons or entities that would obtain economic value from
disclosure or use of the information;
d. A specific description of known competitors and competitors' goods and services that are
pertinent to the tariff or rate filing; and
e. A description of the efforts used to maintain the secrecy of the information.
4. If the basis for protection is a reason other than that the information is trade secret, the
specific basis or bases upon which the information qualifies for protection.
5. A redacted public version of the information, unless this requirement is waived by the
commission. The amount redacted must be as minimal as possible. If it is not possible to file a
redacted public version, a specific written request for waiver of the requirement and the
reasons for requesting a waiver must be filed.
History: Effective March 1, 1994; amended effective April 1, 2015; October 1, 2017.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 44-04-18.4, 47-25.1

### § 69-02-09-02. Filing of application.

1. The application must be addressed to and filed with the executive secretary of the
commission.
2. The protected material filed with the application or pursuant to section 69-02-09-13 must be
separately bound and placed in a sealed envelope, or other appropriate, sealed container,
which must be labeled: PROTECTED INFORMATION - PRIVATE. An original and seven
copies of the public portion of the application must be filed unless this requirement is waived
by the commission. Only one copy of the protected material may be filed.
History: Effective March 1, 1994; amended effective April 1, 2015; October 1, 2017.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 44-04-18.4, 47-25.1
### § 69-02-09-03. Processing the application.

When an application for protection of information is filed, the commission staff shall examine the
information and application, and file and serve a response that includes a recommendation on whether
the information qualifies for protection. If the basis for requesting protection is that the information is
trade secret, the staff response must include a recommendation on whether the information is relevant
and is trade secret, under the definition of trade secret in North Dakota Century Code section
47-25.1-01. The commission will make a determination on the application from the application, the
recommendation, and any response received from those served.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-04. Protective order.

Upon a determination that information qualifies for protection, the commission shall issue a
protective order limiting disclosure.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-05. Request for hearing - Who may request - Time - Burden of proof.

1. Upon a determination that the information does not qualify for protection, the applicant will be
notified and has seven days to request a hearing before the commission, or obtain appropriate
injunctive relief from the courts. If no hearing is requested or the commission is not otherwise
restrained, the information will become part of the public record without protection. The burden
of proof in such a hearing is on the party seeking to prevent disclosure.
2. If any person disagrees with the designation of information as protected or with its
nondisclosure, the person shall first attempt to informally dispose of the dispute with the party
seeking to prevent disclosure. If the dispute cannot be resolved, any person may request a
hearing before the commission to determine the protected status.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1

### § 69-02-09-06. Request for hearing - Contents.

A request for hearing must be in writing. An original and seven copies of the request must be filed
with the executive secretary of the commission. The request must identify the reason the information
should be disclosed, or not protected. In any hearing the burden of proof is on the party seeking to
prevent disclosure.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-07. Viewing protected information.

1. The commission and its staff, and any outside counsel retained by the commission, may view
protected information filed with the commission at any time. However, the commission and its
staff are bound by the terms of these rules to keep the information confidential and must
execute the protective agreement as required in subsection 3. The originator (applicant for
protected status) may view the information at any time without the necessity of executing the
protective agreement required in subsection 3.
2. Others who wish to view protected information, including experts who are not regular full-time
employees of the commission, and opposing counsel and experts, may do so only after
authorization from the commission. The commission may grant authorization when the person
wishing to view the information submits a written request that includes all of the following:
a. The name and address of the person who will view the information;
b. Identification, as specifically as possible, of the information requested;
c. A showing of good cause why the information is needed;
d. Identification of the purpose of the review;
e. Identification of the intended use of the information; and
f. An estimate of the time needed for review.
The requesting person shall file the original written request with the commission and serve it
upon the originator at least ten days prior to the time the person desires to view the
information unless the originator agrees to a shorter notice period.
3. Any person reviewing protected information filed with the commission shall execute a
protective agreement form provided by the commission. A new protective agreement form
must be executed for each work day in which information is viewed.
4. The commission shall disclose the information unless:
a. The commission is prohibited by law from disclosure under any circumstance; or
b. The originator shows good cause why disclosure should not be granted.
When disclosed, protected information may not be removed from commission offices and must be
returned for secure filing prior to the end of the workday on which the information was disclosed, and
may be used only for purposes of the proceeding or case.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1

### § 69-02-09-08. References to protected information at hearings.

To the extent that reference is made to any protected information by a person afforded access to
such information during any aspect of the proceeding, the information should be referenced only by its
title or its exhibit identification, or in a manner that does not unnecessarily disclose the confidential
information. If specific disclosure of the confidential information is necessary during oral testimony or
argument, it must be on such prior notice as is feasible and, in any event, on sufficient notice to clear
the hearing room of persons not bound by this chapter.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-09. Protection of protected information.

Any part of the record of a proceeding containing protected information, including exhibits and
transcript pages, must be protected unless otherwise ordered by the commission. If a commission
order requires a finding based on protected information, the order must reference the confidential
nature of the finding and a separate, confidential document must be prepared to state fully the finding
of fact and the protected information relied upon to support the finding.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-10. Copies of information used during hearing.

Copies of the protected information may be made for use during a hearing for persons bound by
these rules. If copies are made for hearing purposes, they must be numbered. Upon the completion of
the hearing, all copies of the information must be returned to the disclosing party or commission staff.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-11. Documents certified on appeal.

When an order of the commission is appealed and the documents are certified to court, copies
must be made of the protected information. The copies of protected information must be placed in a
sealed envelope, or other appropriate, sealed container, and labeled: "PROTECTED INFORMATION -
PRIVATE". The originals of the protected information must be retained in the commission's protected
information file. When the court issues its decision and returns the case record to the commission, the
copies of protected information must be filed with the originals in the commission's protected
information file.
History: Effective March 1, 1994; amended effective April 1, 2015.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-12. Disposal of protected information.

Except for information filed under section 69-02-09-13, when a case or file containing protected
information has been closed for one year the commission will dispose the protected information by
shredding.
History: Effective January 1, 2001; amended effective April 1, 2015.
General Authority: NDCC 28-32-02

Law Implemented: NDCC 28-32-06, 47-25.1
### § 69-02-09-13. Information filed by telecommunications companies.

Information identified in subsections 1 through 5 of this section is protected without need for the
originator to file an application and without further action by the commission, unless the commission
orders otherwise. Subsections 1 through 4 of section 69-02-09-01, subsection 1 of section 69-02-09-02,
sections 69-02-09-03, 69-02-09-04, and subsection 1 of section 69-02-09-05 do not apply to
information filed under this section.
1. Detailed information concerning telecommunications infrastructure projects.
2. Disaggregated data on provisioned volumes of local services by service type and local
exchange.
3. Disaggregated data on provisioned volumes and associated revenue of switched access
traffic by jurisdiction or local exchange.
4. Detailed information on service outages as defined in title 47, Code of Federal Regulations,
part 4, section 4.5, in effect as of January 30, 2017.
5. Financial information required by the federal communications commission to be copied to the
commission, accompanied by the filing of a copy of the federal communications commission's
protective order for that information.
History: Effective April 1, 2015; amended effective October 1, 2017.
General Authority: NDCC 28-32-02
Law Implemented: NDCC 28-32-06, 44-04-18.4, 47-25.1
