Still-unnamed staff members of the Public Utilities Commission of Ohio accepted utilities’ vague claims of trade secrecy when they recommended hiding information from the public audit of the state’s HB 6 law even though the utilities themselves had already made much of the data public.
In December 2021, three utility companies sought a protective order that removed information from the audit, claiming trade secret protection for details about fuel pricing, the names of the companies providing coal to the Ohio Valley Electric Corp. (OVEC) and OVEC’s financial condition.
The protective order issued July 7 is part of a series of moves by PUCO to limit the public’s access to the information about the effects of HB 6, which was passed after Akron-based FirstEnergy and its allies gave $61 million to a dark-money fund that bribed former Ohio House speaker Larry Householder to pass the law and bail out FirstEnergy’s money-losing operations.
OVEC owns the Kyger Creek and Clifty Creek power plants that have been subsidized by Ohio electrical ratepayers since HB 6 became law in 2019. OVEC itself is owned by a consortium of nine other utilities that provide electricity to customers in Ohio and other states.
Three of those companies – Duke Energy Ohio, Dayton Power and Light and Ohio Power – sought the protective orders, because, as Duke attorneys wrote in their motion, the information is so secret that only “those employees with a legitimate need to know and act upon the information” have access to it.
However, OVEC itself provided the names of the companies that supplied coal to its plants and how much the coal cost. That information is collected by the U.S. Energy Information Administration, part of the Energy Department, and contained in its monthly EIA-923 reports.
The protective order motions also labeled details about OVEC’s financial condition as trade secrets when that information had previously been released on the OVEC website. The utility companies that own parts of OVEC also routinely provided details of its finances in their filings to the U.S. Securities and Exchange Commission.
C&BP seeking staffers’ names and records
Checks & Balances Project has filed a Freedom of Information Act request with PUCO seeking the names of the staffers and their work product related to the protective orders. The request was filed after PUCO denied C&BP’s initial request for the staffers’ names.
Recommending the blanket protective order indicates PUCO staff’s willingness to accept utilities’ claims without explanation, even when the claims are demonstrably false. Anyone familiar with utility policy would know about EIA’s reports about coal pricing and supplies and that OVEC, a utility regulated by PUCO, posts its financial information online.
It isn’t the first time PUCO staff have altered audits into utilities tied to HB 6 in favor of the companies.
In September 2020, PUCO staffer Mahila Christopher emailed auditors asking them to use a “milder tone and intensity” when describing the HB 6 bailouts. Changes sought by PUCO staff were made in the final version of the audit.
What is a trade secret?
In its filings, the utilities asserted that the financial information contained in the audit were trade secrets, because it “consists of confidential, proprietary, and competitively sensitive financial and strategic information regarding the operations of OVEC, including OVEC’s costs, revenues and projections for operations, OVEC’s coal procurement methods and pricing, OVEC’s operational methods and procedures.”
However, OVEC disclosed its costs, revenues and projections in its own publicly available documents, and OVEC’s coal procurement methods and pricing were provided by the company itself to the Energy Information Administration.
Such disclosure fits the Justice Department description of how a trade secret loses its protection. A trade secret is no longer secret, Justice says, if “it is disclosed, for example, either through legal filings (such as by the issuance of a patent), or through accidental or intentional disclosure by an employee at conferences, at trade shows, or in writings.”
Although PUCO staff and attorney examiner Megan Addison agreed with the utilities’ claims of trade secrecy, some of the information that was initially redacted from the HB 6 audit was eventually declared public during a Nov. 2 hearing. That included the name of Resource Fuels, the OVEC coal supplier.
Former PUCO chairman Sam Randazzo was indicted Dec. 4 for his role in the HB 6 scandal.
However, the now-public information is not actually available in the audit on the PUCO website, where the details are still hidden from public view. PUCO spokesman Matt Schilling said the utilities and consumer advocates have deadlines in January by which they must file briefs about the redacted information.
C&BP has also filed a Freedom of Information Act request with PUCO seeking the names of any agency staff members whom Schilling contacted about the C&BP request for the staffers’ names.
Ray Locker is the executive director for Checks & Balances Project, an investigative watchdog blog holding government officials, lobbyists, and corporate management accountable to the public. Funding for C&BP is provided by Renew American Prosperity and individual donors.
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