Media seek Duke-Progress merger documents

Attorneys: Documents can’t be kept private

ablythe@newsobserver.comJuly 12, 2012 

— Media organizations on Thursday renewed their demand that the N.C. Utilities Commission release agreements Duke Energy and Progress Energy made with local power providers prior to a recent merger that created the largest utility company in the nation.

Over the past year, roughly 15 agreements were made in exchange for private organizations not opposing the merger between the two power companies. The details have been kept private. Those involved in the private deals with the big utilities are industrial power users, rural electric cooperatives and municipal power agencies that represent about 1.4 million customers statewide.

Last month, the rural co-ops’ umbrella group said that the “settlement agreements are permeated with trade secrets” and therefore shielded from public disclosure requirements.

The media organizations contend otherwise. In a letter to Utility Commission Chairman Ed Finley, the groups’ attorneys ask for the documents to be immediately released, arguing that they are public records that contain no trade secrets.

“The Commission should summarily reject the parties’ self-serving arguments and release the settlement agreements, because a negotiated, arms-length agreement between two parties is inimical to the very concept and definition of a ‘trade secret,’ ” the media organization attorneys argue in their appeal.

The lawyers represent The News & Observer, WRAL, WTVD, News 14 Carolina, The Charlotte Observer, WNCN, WNCT and WCNC.

Finley said Thursday that the commission hoped to have a response within the next week. Because the utilities have contested the request, the commission has to develop an order and provide reasons for what it would consider public documents.

The media organization attorneys argue that state law defines a “trade secret” as a formula, method, technique or other business-related information that derives its actual or potential value from being dependent on secrecy.

“By definition, the settlement agreements at issue are neither internal nor secret,” attorneys Hugh Stevens, Amanda Martin and Michael Tadych said in the letter.

“Their terms are known to the parties who negotiated and executed them and to the commission,” the lawyers said. “They simply are not known to the public.”

In their letter, attorneys for the media offered the formula for Coca-Cola and the algorithm for Google’s search engines as classic examples of trade secrets that must be kept internal and secret to be valuable. By contrast, the attorneys said, the settlement agreements are known by both parties and the commission, and are valuable if the promises made are valid, not if they are kept confidential.

The attorneys asked the commission to provide any statutes or case law that would explain keeping the settlement agreements away from the public.

The lawyers want the settlement agreements released by the commission by 5 p.m. Friday on the commission’s website.

The merger has received added scrutiny this week following the ouster of Progress Energy head Bill Johnson, who was expected to lead the merged company, known as Duke Energy.

Staff writer Josh Shaffer contributed.

Blythe: 919-836-4948

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service