CopyCited 1 times | Published | Florida 1st District Court of Appeal | 30 I.E.R. Cas. (BNA) 805, 2010 Fla. App. LEXIS 2528, 2010 WL 728211
...We consolidated these petitions for disposition because the facts, issues, and arguments are substantially the same. For the reasons discussed below, we reverse the Commission's orders and order the Commission to keep the compensation information at issue confidential, in accordance with the procedures in section 366.093, Florida Statutes (2008)....
...Stat. (2008). Progress Energy and Florida Power included employee compensation as costs associated with the increased rate change. Information relating to the rates or costs of services is relevant in a ratemaking proceeding for discovery purposes. § 366.093(2), Fla....
...er operation and management expenses. Progress Energy and Florida Power answered the interrogatories and provided some of the information, but filed contemporaneous motions seeking to protect the confidentiality of the compensation information under section 366.093(3), Florida Statutes. The utility companies argued the information should be kept confidential because it was sensitive competitive business information, and disclosure of the information to the public would invade their employees' right to privacy. Section 366.093, Florida Statutes, allows documents produced in a ratemaking proceeding to be exempt from public disclosure if the Commission determines the information is proprietary confidential business information....
...In addition, the Commission ruled it lacked jurisdiction to consider the intervenors' constitutional argument. The second order denied the confidentiality requests. The Commission determined the utility companies' compensation information could not be confidential because section 366.093(3)(f), Florida Statutes, expressly excluded such information from being considered proprietary confidential business information....
...confidential until judicial review is complete. See Fla. Admin. Code R. 25-22.006(10). Analysis We first address our jurisdiction to consider the merits of Petitioners' issues. Next, we turn to the correct statutory interpretation and application of section 366.093, Florida Statutes....
...Jurisdiction and Scope of Review We have jurisdiction even though these cases arise out of electric utility ratemaking proceedings at the Commission. The specific "action" at issue is the Commission's determination that certain information provided by the utilities during discovery is not confidential under section 366.093(3), not the Commission's ultimate determination of the utilities' rates or services....
...authority to inspect a utility company's records in ratemaking proceedings, any information which is shown to be proprietary confidential business information "shall be kept confidential and shall be exempt" from section
119.07(1), Florida Statutes. §
366.093(1), Fla. Stat. What constitutes proprietary confidential business information is detailed in section
366.093(3), Florida Statutes: (3) Proprietary confidential business information means information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is treated by the person or...
...The Commission found the statute was unambiguous, but went on to find that even if the statute were ambiguous, the specific provisions of sub-subsection (f) prevailed over the general definition in subsection (3). As explained below, the Commission's interpretation of section 366.093(3)(f) is clearly erroneous; therefore, we must depart from the Commission's construction....
...State,
946 So.2d 591, 593-98 (Fla. 1st DCA 2006) (Thomas J., dissenting)). The court held that the list enumerated in section
92.565(2) was a list of factors a trial court could consider, but that the list was not exhaustive. See id. Likewise, we hold that the categories listed in section
366.093(3)(a)-(f), Florida Statutes, are not exhaustive, as evidenced by the Legislature's use of the phrase "includes, but is not limited to." The Commission may consider whether information *866 not expressly listed in sub-subsections (a)-(f) should be classified as confidential....
...wise fell within the definition of proprietary confidential business information in subsection (3). C. Application Progress Energy and Florida Power put forth uncontradicted evidence at the hearing that they complied with the general requirements in section 366.093(3) and that their compensation information warranted confidential classification under subsection (3)(e) because disclosing the information would impair their competitive interests....
...The utility companies were also concerned about morale and infighting among employees who have the same position but varying wages. The utility companies argued that higher wages would ultimately result in higher rates for consumers. Thus, the Commission should have granted the motions for confidentiality under section 366.093(3)(e), Florida Statutes....
...Conclusion We reverse the Commission's orders denying Petitioners' motions to protect their employee compensation information, and order the Commission to keep the records confidential until such time as they are no longer needed, in accordance with section 366.093, Florida Statutes....
