before the public utilities commission of the state of ... 08-12-009 lgsec comments on proposed...
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BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF CALIFORNIA
Order Instituting Rulemaking to Consider
Smart Grid Technologies Pursuant to Federal
Legislation and on the Commission’s Own
Motion to Actively Guide Policy in
California’s Development of a Smart Grid
System.
Rulemaking 08-12-009
(Filed December 18, 2008)
COMMENTS OF THE LOCAL GOVERNMENT SUSTAINABLE ENERGY COALITION
ON PROPOSED DECISION ADOPTING RULES TO PROVIDE ACCESS TO ENERGY AND USAGE-RELATED DATA
Jody London
P.O. Box 3629
Oakland, California 94609
510/459-0667
FOR Local Government Sustainable Energy
Coalition
March 27, 2014
TABLE OF CONTENTS
Table of Authorities I. Introduction ...........................................................................................................1
II. Online Data Request System Is Important ..............................................................2
A. Local Governments Must Be Able to Provide Data to Contractors ......................2
B. No Waiting Period Is Needed Before Releasing Data ..........................................3
III. Partnerships with University Research Institutions Should Be Available to Interested Local Governments ...............................................................................4
IV. Access to Data Is Critical.........................................................................................4
A. Historical and Energy Cost Data Should Be Provided, As Well .............................4
B. Data Can Be Disaggregated to 15 Accounts ........................................................5
C. Publicly Posted Data Should Be Disaggregated Below the Zip Code Level ...........5
D. Accounts with Solar Should Be Included in Usage Reports ..................................6
V. Whole Building Data Should Be Made Available Now .............................................7
A. The PD’s Interpretation of the CPUC’s Privacy Rules Raises Concerns .................7
B. Local Governments Satisfy Two Primary Purpose Exceptions to Customer Consent Requirement Established In The Privacy Rules ........................................9
1. Local Governments Provide Services As Required By State Law ......................9
2. Local Governments Plan, Implement, and Evaluate Energy Efficiency Programs as Part of a Commission Decision ..................................................10
C. The CPUC Has Authority to Support Building Benchmarking .............................11
VI. Energy Data Access Committee Must Include Local Governments .......................15
VII. The PD Rightly Closes the Record ............................. Error! Bookmark not defined. VIII. Conclusion ...........................................................................................................15
ATTACHMENT A: Recommended Changes to Findings of Fact and Ordering Paragraphs
TABLE OF AUTHORITIES
STATUTES
California Public Records Act of 1968, CAL. GOVT. CODE tit. 1, § 65080 et seq. and tit. 14, §§ 21061.3 and 21155 et seq… (1968)….………………………………………………………………….8, 14
The Global Warming Solutions Act of 2006 (“AB 32”), CAL. HEALTH AND SAFETY CODE tit. 22, §
38500 et seq. (2006)……………………………………………………………………..7, 9, 10, 11
The Nonresidential Building Energy Use Disclosure Program Act of 2007 (“AB 1103”), CAL. PUB. RES.
CODE tit.14, § 25402.10. (2007)…………………………………………………..3, 10, 12, 13, 15
The Sustainable Communities and Climate Protection Act of 2008 (“SB 375”), CAL. GOVT. CODE tit. 1, §
65080 et seq. and CAL. PUB. RES. CODE, tit.14, § 21155 et seq. (2008)…………………………11
The Warren-Alquist State Energy Resources Conservation and Development Act of 1974, CAL. PUB. RES.
CODE tit.14, § 25000 et seq. (1974)………………………………………………………….......15
REGULATIONS
Climate Change Scoping Plan – A Framework for Change (Prepared pursuant to AB 32 (December 2008) ……………………………………………………………………………………………………………..11
Decision Adopting Rules to Protect the Privacy and Security of the Electricity Usage Data of the
Customers of Pacific Gas and Electric Company, Southern California Edison Company, and San Diego Gas & Electric Company, D.11-07-056 (July 29, 2011)……………………………...10, 12
Decision Approving 2013-2013 Energy Efficiency Programs and Budgets, D.12-11-015 (November 15, 2012)……………………………………………………………………………………………...12
OTHER AUTHORITIES
CA.GOV (2014) Property and parcel maps by county:
http://www.ca.gov/OnlineServices/OS_Consumers_propsearch.html...........................................14
Bernadette Del Chiaro, SEIA Executive Director, December 31, 2013 –
http://solarindustrymag.com/e107_plugins/content/content.php?content.13637.............................8
Institute for Market Transformation (2014) Summary of commercial and multifamily building
energy disclosure policies: http://www.buildingrating.org/sites/default/files/PolicyTable.PNG...13
The State of California (http://data.ca.gov) as well as numerous local governments
(http://datasf.gov, et al) to provide open data to empower innovation…………………………….7
US Census (2010) http://www.census.gov/geo/reference/ua/urban-rural-2010.html (Browsed March 26, 2014)……………………………………………………………………………………7
Working Group Report…………………………………………………………………………………....13
I. Introduction In accordance with the Rules of Practice and Procedure of the California Public Utilities
Commission (“Commission” or “CPUC”), the Local Government Sustainable Energy Coalition
(“LGSEC”)1 submits these comments on the Proposed Decision Adopting Rules to Provide
Access to Energy Usage and Usage Related Data While Providing Privacy of Personal Data
(“PD”). Having actively advocated for many years for a clearly defined process that will allow
local governments to obtain data needed to meet State and local mandates, and to carry out
energy efficiency programs through Regional Energy Networks and partnership programs with
the investor-owned utilities (“IOUs”), the LGSEC is pleased the Commission is issuing guidance
to allow better access to key information needed to carry out the mandates of the State and our
locally elected governing bodies. The LGSEC respects that the Commission is balancing many
interests as it considers the best options for studying energy use among Californians, in order to
better manage and deploy demand and supply side energy resources. Having participated
actively in the working group process last year, the report of which informs the PD, the LGSEC
appreciates the opportunities to use energy usage data to inform and assess energy programs, and
the importance of protecting consumer privacy.
The PD suggests significant progress for local governments in terms of better access to
energy usage data. Of particular importance to the LGSEC, the PD:
Directs the IOUs to quickly develop a standard, online application process for
requesting data.
Clearly allows local governments to partner with accredited university research
organizations to study energy usage patterns.
Allows access to both zip code and census block data, under certain restrictions.
Directs the IOUs to begin publicly posting monthly zip code data by customer class,
on a quarterly basis and online.
Establishes an Energy Data Access Committee that will serve as a first venue to
review issues related to energy usage data.
1 Across California, cities, counties, associations and councils of government, special districts, and non-
profit organizations that support government entities are members of the LGSEC. Each of these
organizations may have different views on elements of these comments, which was approved by the LGSEC’s Board.
2
While the PD makes progress on these topics, there are some inconsistencies within the
document that should be clarified in the final decision adopted by the Commission, to better
facilitate access to and use of this information and not overtax the new Energy Data Access
Committee. These include:
The decision must permit disclosure to the government entity’s contractors who are
developing those documents using these data on behalf of the government entity.
Should the Commission determine a non-disclosure agreement (“NDA”) is required
for local governments, the process for authorizing the NDA should be automated to
the maximum extent possible.
The PD erroneously excludes customers with solar installations from the reporting
groups.
The PD shunts the challenge of obtaining energy usage data required for compliance
with Assembly Bill 1103 and related local ordinances to the California Energy
Commission (“CEC”), and downplays the authority of the CPUC, as well as the
authority of local governments to compel building owners to obtain this fundamental
data about how their buildings are performing. The Commission can and should send
clear direction that the IOUs must provide these data.
II. Online Data Request System Is Important The PD directs the IOUs to quickly develop a standard, online application process for
requesting data (p. 83). This is something the LGSEC has long requested. While the PD
anticipates this online request system will “eventually include a Data Catalog of energy data
access requests made, fulfilled, and/or denied” (p. 84), it should direct the utilities to publish in
advance and update as needed a report on standard available data and formats. Knowing this
information in advance avoids protracted and repeated back and forth about whether data is or is
not available, and allows an entity that requires data not currently offered to move immediately
to the Energy Data Access Committee for assistance in resolving the issue.
A. Local Governments Must Be Able to Provide Data to Contractors
The PD on 85, rule 7(b) states: “The party will not release the data to another third party
or publicly disclose the data.” This is problematic. It is common practice for local governments
to engage subject matter expert contractors for assistance developing climate action plans,
energy action plans, and other documents that rely on energy usage data. Local governments
3
must be able to provide data required for analysis to their contractors. Ideally this could occur as
a matter of routine.
It is our reading that an NDA would not be necessary for a local government receiving
aggregated and anonymized data; the data is already aggregated and anonymized and the PD
makes findings of fact that a series of data aggregation thresholds are sufficient to prohibit re-
identification (Finding of Fact 12, 14, 15, 16, 17, 18, and 19). If there are concerns about
inappropriate use of the data, the Commission could direct that local governments enter into
NDAs that govern the ongoing release of data to local governments, similar to the one approved
in the PD for academic research institutions (p. 104). The NDA will need to permit disclosure to
the government entity’s contractors who are developing those documents on behalf of the
government entity. Should the Commission take this approach, it should direct that the process
of signing the NDA should be quick; it should not require a prolonged negotiation. The LGSEC
requests that execution of any NDA be automated, similar to how customers routinely provide
consent in online transactions and how PG&E now records customer consent online for release
of usage data for benchmarking.
Further, the PD must explicitly and upfront allow publication of derivative works based
on the energy usage data for these local government reports and plans. There are circumstances
where a local government would desire to disclose energy usage data in order to allow
development of energy-related local government reports and plans, for example a staff report or
green report card developed as part of a greenhouse gas inventory. The final decision must
authorize this use of data if the rules promulgated here are to be of use.
B. No Waiting Period Is Needed Before Releasing Data
The PD would require a 4 week waiting period before the utility can release data to a
requesting local government (p. 85). The LGSEC has no argument with the utility notifying the
Commission that it has released data in accordance with the Commission’s policies, and the
individual and organization to which the data have been provided. We are concerned, however,
with the requirement for a formal letter to be sent to the Commission’s Executive Director 4
weeks in advance. It is not clear why 4 weeks is necessary for the first time a given government
makes such a request, nor why repeated requests by a party that has demonstrated understanding
and compliance with the procedures proposed would be repeatedly subjected to a non-trivial
delay for little clear purpose. Does the Commission anticipate there will be protests to the
4
release of these data? Assuming that the IOUs are following the guidelines for process and
content established in this decision, there should be no controversy over their release. The
LGSEC requests that the Commission eliminate the waiting period, and instead require
notification that data have been provided to a requesting entity pursuant to Commission policy
and direction. This information is going to be provided anyhow in the quarterly reports ordered
in the PD.
III. Partnerships with University Research Institutions Should Be Available to Interested Local Governments The PD clearly allows local governments to partner with accredited university research
organizations to study energy usage patterns. This is very useful, and will allow local
governments to continue to build on work underway in at least one region, the Los Angeles
metropolitan area. This partnership was developed in response to State policies aimed at
reducing greenhouse gas emissions. At some point, the State must have data on emission
profiles in individual communities. That is a primary value of collaboration between universities
and local governments. The final decision should be clear that research institutions can provide
aggregated, non-Personally Identifiable Information data about energy usage in a local
government jurisdiction to the staff and decision makers of that jurisdiction.
The LGSEC suggests that the State encourage California’s many research institutions to
initiate these collaborative studies in every region, now that the Commission has clarified the
role of research institutions and how they can access needed data. Less populated regions or
regions with fewer resources to engage university researchers should be afforded equal
opportunity to these studies and analyses. However, if numerous parallel research initiatives
flourish, it may be cost-effective for a single accredited academic research institution to host a
statewide Energy Data Center, whereby consistent data and analyses are available to other
accredited academic researchers. The Commission should be open to reexamining this idea
within two years of finalization of this decision.
IV. Access to Data Is Critical
A. Historical and Energy Cost Data Should Be Provided, As Well
The PD (pp. 33-36) allows access to data at both the zip code and census block level.
This is a major improvement over the status quo. The key difference is that the zip code level
data will be posted on regular basis to a publicly available web site, while the census block data
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will only be provided upon request by local governments. The LGSEC requests that historical
energy usage data be made available to local governments in order for local governments to
understand historical trends and change against a baseline year. For the purpose of Climate
Action Plans, many cities have a baseline year of 2000. The LGSEC requests that utilities be
directed to provide historical data, by zip code and by census block, back to 2000. These data are
essential for enabling communities to measure progress toward their Climate Action Plan goals.
Additionally, local governments should be able to obtain data on energy costs, in order to
track energy cost savings. For example, if a local government implements an energy program
targeting residents or businesses, it would be beneficial to see if the program was effective, and
make the economic case for energy efficiency.
B. Data Can Be Disaggregated to 15 Accounts
The PD directs the utilities to make available to local governments upon request yearly,
quarterly, and monthly data, both aggregated and anonymized. The PD would require that any
given request have at least 15 accounts, and that no single account constitute more than 20% of
the total consumption in any time interval requested. This direction is an improvement over the
current 15/15 rule. That being said, the Commission should continue to analyze this account
aggregation threshold and consider decreasing the threshold to enable provision of more granular
data. As the LGSEC noted in its earlier comments, several utilities across the U.S. have lower
aggregation thresholds while still able to protect consumer privacy. Pepco, in Washington, D.C.,
for example, has a simple threshold of 5 accounts.
For data that is only anonymized, the PD would require the request to have 100 or more
accounts, with no single account constituting more than 10% of the total consumption. It is
difficult to see value in this high of an aggregation threshold. This is an inconsistency that should
be corrected in the final decision. Data should be published in blocks of 15 customers. A
consistent data aggregation threshold should be applied across classes of customer accounts.
C. Publicly Posted Data Should Be Disaggregated Below the Zip Code Level
Making energy data usage by zip code and customer class available in a publicly posted
online location is a good first step. However, we note that except in the most rural areas, zip
codes often contain thousands of households. Many in urban and suburban areas have over
20,000. Aggregation to the level of zip code is better than nothing, but of limited use and less
6
meaningful as population density increases – disadvantaging the very urban areas which are
home to 95% of Californians according to the 2010 Census - in the absence of published data we
must assume a similar proportion of total residential energy consumption.2 The LGSEC suggests
that the Commission could apply the consistent aggregation threshold rule, and allow residential
data for publication to be provided at the finest geographic scale where the Commission’s
selected aggregation threshold is met, such as Zip Code +2 or (preferably) Census Block Group.
We specifically suggest that publication to a public website of all data meeting the aggregation
threshold, similar to the Los Angeles Energy Map published by the California Center for
Sustainable Communities in collaboration with the LA Department of Water and Power.
Granular data, within the constraints explored in the Proposed Decision, is helpful to local
governments and consistent with the broader efforts by the State of California (http://data.ca.gov)
as well as numerous local governments (http://datasf.gov, et al) to provide open data to empower
innovation.
In addition, it is important to note that certain large industrial entities are already required
to report their energy usage and greenhouse gas emissions to the California Air Resources Board
under AB 32. Given that these entities are already required to publicly report, these entities’
usage should be included in aggregations that include industrial accounts, but such entities’
usage should not be considered in determining whether any one account is responsible for more
than 25% of usage if the “5/25 rule” is applied to industrial accounts. Factoring a large entity’s
usage into 5/25 will often mean that a local government will not be able to access industrial
usage for that zip code, even if that entity is already reporting its usage elsewhere and the usage
is therefore already public information. If an entity is already reporting its usage to CARB, its
usage should not be factored into the 5/25 calculation.
D. Accounts with Solar Should be Included in Usage Reports
The LGSEC appreciates that the decision represents progress toward clear guidance
around data the utilities will be required to provide. Puzzlingly, the PD proposes exclusion of
customers with solar installations from the reporting groups. This would be problematic foremost
because solar DG is growing rapidly; CalSEIA estimates that in 2013 more rooftop solar
2 US Census (2010) http://www.census.gov/geo/reference/ua/urban-rural-2010.html - Browsed March 26,
2014.
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installations were installed in California than the previous 30 years combined.3 Further, solar
electric installations are a matter of public record (as they are installed with permits from the
local building department, which is subject to the California Public Records Act among other
disclosure requirements), are commonly visible both from the street and in now ubiquitous
publications of 2-meter resolution imagery available via Google Maps, Bing, and Open Street
Map, as well as numerous vendors offering 50 centimeter resolution in US urban areas. Further,
solar installations are of course not limited to residential accounts. Taking San Francisco as an
example, there are both residential and non-residential solar installations in every Zip Code.
Making the aggregation process unnecessarily complex makes interpretation of the data
unnecessarily complex. Excluding solar customers from the reporting groups will have the
unintended consequence of underreporting total energy consumption for the given area, which is
particularly problematic around the Preferred Resources pilots in Southern California Edison’s
service territory, and for balancing ongoing demand. Additionally, assuming the State continues
to achieve its goals for solar deployment, this will over time mean the group for which reports
are available becomes smaller and the data less reliable and less useful, as more households and
businesses implement solar installations. The final decision should not exclude households or
businesses with solar from being included in energy usage reports.
V. Whole Building Data Should Be Made Available Now The Proposed Decision provides a cogent summary of the discussion of whole building
aggregated data for the purpose of benchmarking, yet punts the debate to the CEC. The
Commission has the authority to direct utilities to provide whole building data, and should do so.
A. The PD’s Interpretation of the CPUC’s Privacy Rules Raises Concerns
The LGSEC has concerns about the Commission’s interpretation in the PD of its own
Privacy Rules (articulated in D.11-07-056). First, the Commission impermissibly imports non-
existent requirements into a potentially endless number of state and federal statutes, which
constitutes overreaching. It states: “[R]equests for specific data along with a clear identification
of specific state or federal statutes which require this data is the path that local governments
should pursue going forward. (35).” (Emphasis added). The Commission’s reasoning provides
no legal authority for the proposition that the only way that a local government may obtain data
3 Bernadette Del Chiaro, SEIA Executive Director, December 31, 2013 -
http://solarindustrymag.com/e107_plugins/content/content.php?content.13637
8
is if a specific statute requires data. Several environmental statutes espouse broad goals, which
local governments may help to realize in myriad ways, including gathering and analyzing climate
planning data. Just because these statutes do not require local governments to gather data does
not mean that local governments do not have the latitude to carry out such services.
A statutory example demonstrates this point. AB 32, The California Global Warming
Solutions Act of 2006, states in its Findings and Declarations that:
California has long been a national and international leader on energy conservation and
environmental stewardship efforts, including the areas of air quality protections, energy
efficiency requirements, renewable energy standards, natural resource conservation, and
greenhouse gas emission standards for passenger vehicles. The program established by
this division will continue this tradition of environmental leadership by placing California
at the forefront of national and international efforts to reduce emissions of greenhouse
gases. (Section 38501(c)).
It is the intent of the Legislature that the State Air Resources Board coordinate with state
agencies, as well as consult with the environmental justice community, industry sectors,
business groups, academic institutions, environmental organizations, and other
stakeholders in implementing this division. (Section 38501(f)).
Here, the Legislature articulates broad policy goals centered on “energy conservation and
environmental stewardship efforts” and then states that it intends for the regulatory body to
coordinate with a host of stakeholders, presumably including local governments. While the
statute subsequently assigns numerous concrete tasks to the Air Resources Board, it leaves room
for entities like local governments to advance the broad goals in the Declarations section, which
could and do include gathering and analysis of customer energy usage data for GHG and energy
usage purposes.
Second, the Commission makes an interpretive assumption in the PD, fails to articulate it,
and then draws the only conclusion it deems possible based upon its original assumption:
Concerning the release of covered information to local governments for purposes of
building benchmarking, we note that the Privacy Rules adopted in D.11-07-056 do not
permit utilities to disclose covered information without customer consent to third-parties
except in certain cases, such as when the data will be used for qualifying “primary
purposes,” most notably, “to provide services as required by state or federal law.” A
local government that seeks such information must show that it is seeking Covered
Information as necessary to comply with state or federal law. Alternatively, local
government can seek individual customer consent for sharing of customer data or petition
the Commission for an order directing the release of this information. At this point in the
proceeding, there is not sufficient showing that Federal or State law requires local
governments to perform building benchmarking services. Finally, we note that AB 1103,
9
the statute creating the building benchmarking program, is part of the resource code and
under the administration of the CEC. (pp. 35-36).
The Commission assumes that in the phrase, “to provide services as required by state or
federal law,” the emphasis is on who may provide such services. Stated differently, if the
services at issue in a particular statute are not assigned to a local government, then the
Commission seems to believe that they must not be within the province of the local
government’s responsibility. However, one could just as easily place the emphasis on what
services are required in a particular statute. Thus, when interpreting a particular statute, the key
inquiry would be whether the legislation required certain services. If such services were not
assigned to a particular entity, then local governments should be able to provide them.
Again, as an example, AB 32 charges the State Air Resources Board with carrying out
several functions, including mandatory GHG reporting, but leaves space in the statute for local
governments to assist with this effort by requiring the Board to “coordinate” with other
stakeholders such as local governments in the process.
B. Local Governments Satisfy Two Primary Purpose Exceptions to Customer Consent Requirement Established In The Privacy Rules
1. Local Governments Provide Services As Required By State Law Irrespective of the interpretive problems identified above, local governments still satisfy
two primary purpose exceptions under the Commission’s Privacy Rules. First, local
governments collect, store, use, or disclose customer energy consumption data to “provide
services as required by state…law” under AB 32. Pursuant to AB 32’s requirements, the State
Air Resources Board (“Board”) promulgated a Scoping Plan in 2008. The Scoping Plan directly
addresses “The Role of Local Government” and deems them “Essential Partners” in effectuating
the goals delineated in the AB 32: “Local governments…have broad influence and, in some
cases, exclusive authority over activities that contribute to significant direct and indirect
greenhouse gas emissions through their planning and permitting processes, local ordinances,
outreach and education efforts, and municipal operations. Many of the proposed measures to
reduce greenhouse gas emissions rely on local government actions.” (Scoping Plan, pg. 26).
While the Board does not directly link the issue of energy efficiency to local
governments, it does so imply when stating that “[e]nergy-efficiency measures for both
electricity and natural gas can reduce greenhouse gas emissions significantly” (Scoping Plan, p.
10
41). It then goes on to explicitly support local governments in their efforts to inventory and
report GHG emissions. The Plan references adoption of Local Government Operations protocol
to provide guidance to local governments for emissions from municipal operations and their
communities, and encourages them to use the protocol to track progress. The Plan also
encourages local governments to adopt reduction goals that parallel the State’s commitment to
reduce GHG emissions. (Scoping Plan, pg. 27).
Second, local governments collect, store, use, or disclose customer energy consumption
data to “provide services as required by state…law” under SB 375, The Sustainable
Communities and Climate Protection Act (2008), which seeks to reduce GHG emissions through
coordinated transportation and land use planning. Local governments have several roles under
SB 375, including, for example, consulting with the State on models, serving on advisory
committees, and issuing reports,4 ensuring they have adequate data to develop regional targets
and monitor performance,5 and exchange technical information with the Air Resources Board as
part of a consultative process.6
Although SB 375 does not explicitly reference customer energy consumption data, it
references it impliedly in the above sections where local governments play a leading role in
analyzing and evaluating highly technical issues related to transportation, GHG emissions, and
energy efficiency measures.
2. Local Governments Plan, Implement, and Evaluate Energy Efficiency Programs as Part of a Commission Decision
Local governments also satisfy a second primary purpose exception under the
Commission’s Privacy Rules, namely, to “plan, implement, or evaluate demand response, energy
management, or energy efficiency programs under contract with an electrical corporation, under
contract with the Commission or as part of a Commission authorized program conducted by a
governmental entity under the supervision of the Commission.” (PD, p. 151). More specifically,
in Decision 12-11-015, the Commission authorized the creation of two Regional Energy
Networks (“RENs”) comprised of several local governments.7
4 (Section 2. 14522.1. (a) (1)
5 Section 65080(i)
6 Section 65080(iv)
7 D.12-11-015, pp. 117-118.
11
In fact, Southern California’s REN is comprised of several LGs, including more than 700
agencies (12 Counties, and 200 Cities, Townships, and Tribes), 100 Water/Waste Districts, and
400 Education Agencies. The RENs are on par with the Investor Owned Utilities and are
directly supervised by the Commission.8 Lastly, the RENs are tasked with planning,
implementing, and evaluating energy efficiency programs.9
As the Commission is aware, the RENs have created a host of energy efficiency
programs, including, for instance, programs for public agencies, residents, contractors, and
businesses. By creating an array of energy efficiency programs pursuant to Decision 12-11-015
and subject to Commission supervision under the REN organization, local governments clearly
satisfy this primary purpose exception to the Commission’s Privacy Rules.
C. The CPUC Has Authority to Support Building Benchmarking
While it is accurate that the CEC is responsible for administering AB1103, and the
LGSEC would participate if the CEC were to open a data access proceeding, the CPUC has
authority now to establish a broad, comprehensive, and consistent approach to building energy
benchmarking which is lawful and consistent with the Commission’s shared interest with the
CEC and stakeholders in energy efficiency. It would be a disservice to the parties to merely punt
to another agency, not least because of unnecessary delay. The presumption that the CEC will act
to exercise largely dormant statutory powers is key; while Use Case 7 relates to AB 1103, the
issues raised in this proceeding have been broader than the single statute, and include the ability
of building owners with multiple tenants having utility customer accounts to:
Obtain whole building monthly summed information – and put that information to use
for purposes of energy efficiency – substantially before or even when not currently
contemplating a transaction triggering AB 1103, and under what circumstances this
can be accomplished without the owner possessing tenant PII.
Provide owners of multifamily residential buildings with equal ability to track whole
building energy use, and under what circumstances this can be accomplished without
the owner possessing tenant PII.
8 Ibid., pp. 117, 119.
9 Ibid., p. 8.
12
Allow local governments to implement laws complementary to AB 1103, which –
similar to other major cities nationwide10
– compel the building owner to track whole
building energy use (ideally with support from their utility), and annually publicly
report whole-building energy use.
The Working Group report asserted that if the utility “adequately aggregate(s) the
tenants’ usage so that the customer’s identity is not disclosed as part of aggregated whole
building usage,” then it is problematic if “there are too few tenants in the building to avoid “re-
identification of the tenants’ identities even when the usage is aggregated to a whole building
level.”11
Further, the Proposed Decision repeatedly relies upon the principle that aggregating
utility customers’ energy usage and usage-related information such as by summing can eliminate
data at the level of individual customers, and that individual customers cannot reasonably be re-
identified. The minimum threshold for meeting the definition of “aggregated data” in Finding of
Fact (3) (p. 110) may be a subject of discussion in these comments, but we stipulate that such
thresholds can be set.
The argument that such thresholds cannot be set for individual buildings appears to rest
significantly on whether utilities can provide PII to building owners under AB1103 without
customer consent, and how the utilities may document that an individual requesting such data is
the building owner. The latter question is a readily addressed administrative process, but the
former question is not necessarily applicable because monthly whole building usage need not
necessarily be PII in the context of benchmarking individual buildings. The former question is
not necessarily applicable. By definition, Personal Information “does not include publicly
available information that is lawfully made available to the general public from federal, state, or
local government records.” (PD, p. 11) The address, shape, size, and primary uses of buildings
in California are therefore not Personal Information, because such attributes are published by
each County and are typically made available online via the Assessor or Recorder.12
This
information is available as a public record as required by the California Public Records Act
(Government Code Section 6250) and other statutes. The presence of utility service is reflected
10
Institute for Market Transformation (2014) Summary of commercial and multifamily building energy
disclosure policies: http://www.buildingrating.org/sites/default/files/PolicyTable.PNG 11
Working Group Report pp. 75-76, as quoted in PD, p. 58 12
See CA.GOV (2014) Property and parcel maps by county: http://www.ca.gov/OnlineServices/OS_Consumers_propsearch.html
13
in architectural drawings and specifications submitted in the course of applications for building
permits as well as planning entitlements, which are also public records subject to the Public
Records Act and similar statutes. Such permits even include the anticipated energy consumption
for each building in the form of Title 24 Part 6 Energy Standards compliance documentation.
And, determination of which energy utility(ies) serve a given building is a public record in each
local government’s franchise agreement. Therefore, location of a building – and even presence
of utility service – is lawfully published data and not necessarily PI or PII.
The remaining element of the question is whether whole-building monthly energy use
associated with a public address constitutes Personally Identifiable Information (or even Covered
Information). The Working Group Report defined “aggregated data” as:
“A group or set of data points containing a sufficient number of points removed of
personally-identifiable information where one cannot reasonably re-identify an individual
customer based on, for example, usage, rate class, or location.” (ALJ Ruling, 2/27/13)
Proposed Decision Finding of Fact (2) elaborates, “It is reasonable and useful to define
‘aggregated data’ as customers’ energy usage and usage-related data … that has been summed …
such that the result does not contain information at the level of individual customers and an
individual customer cannot reasonably be re-identified.”
Findings of Fact #14, 15, 16, 17, 18, and 19 each recognize circumstances where data is
sufficiently aggregated that the Commission proposes to recognize an aggregation threshold
above which the number of utility customer accounts and proportion of usage attributable to any
one account meets the above definition of aggregated data – and any individual customer cannot
reasonably be identified. Each of these findings also cites a zip code as a minimum geographic
unit. Note that there are buildings in California, including but not limited to Dodger Stadium and
11 buildings in San Francisco, that have unique zip codes. If one of these buildings contains
more than 15 customer accounts (and does not trigger the 20% threshold), then the aggregation
threshold in the PD is met, and no individual customer account in such a building is directly
identified if the building owner possesses the sum of whole building monthly energy use. Why
would an adjacent identical building with the same number of customer accounts, but located in
a larger zip code, would be treated differently?
Because the size and density of occupancy of zip codes vary (and zip code boundaries are
mutable over time), the zip code or other geographic unit larger than the building serves no
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purpose in the case of building benchmarking. Therefore, the buildings must be divided into two
groups:
Buildings which have a number of customer accounts equal to or greater than the
CPUC’s aggregation threshold, (Above Aggregation Threshold) and
Buildings which have fewer customer accounts than the CPUC’s aggregation
threshold. (Below Aggregation Threshold.)
Buildings Above Aggregation Threshold are above the threshold, and the sum of monthly
usage data by definition and Finding of Fact does not contain PII, so the building owner should
have this information. On the other hand, the sum of monthly energy usage data for buildings
Below Aggregation Threshold does not sufficiently mask PII as defined in the PD, and the
building owner must obtain tenant consent in order to benchmark energy use, in the absence of
action by the CEC, Legislature, or affirmative response by the CPUC to a petition by local
governments.
The LGSEC suggests a further refinement. As the PE suggests that proportional usage
will be a factor in determining whether whole building summed monthly data can be provided,
we propose that the CPUC allow, and direct the utilities to accept, consent of any and all parties
triggering the proportional usage threshold to trigger sharing of whole building data with the
building owner. In other words, if the proportional usage threshold remains at 20%, then the
consent of each tenant responsible for more than 20% of total usage should be sufficient to
trigger release of whole building data, rather than excluding such facilities from data aggregation
altogether.
Instead of this approach, the PD, on pp. 63-64, shunts the challenge of obtaining energy
usage data required for compliance with Assembly Bill 1103 and related local ordinances to the
California Energy Commission (“CEC”). The PD relies on the authority the CEC enjoys under
the Warren Alquist Act and AB 1103 to basically evade providing direction. This only serves to
create further delay for local governments that are working to implement local ordinances that
will facilitate AB 1103 implementation. There are many multi-family and multi-tenant buildings
in California with more than 15 accounts. If a building meets the 15 account minimum described
above and in the PD, there is no reason it should not be included in energy usage reports. The
Commission can and should send clear direction, that the IOUs must provide these data.
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Regarding NDA for building benchmarking, a building owner should be able to use
benchmarking data for at least three purposes: (1) compliance with relevant building
benchmarking laws; (2) critical to the intent of such laws to engage professional engineers to
identify cost-effective energy efficiency improvements among portfolios of properties and within
buildings; and (3) implement and track the impacts of capital, operational, and behavioral
improvements in concert with energy services providers and tenants. Each of these actions is
enabled by the building owner having the ability to extend the NDA (if any) to tenants as well as
service providers.
VI. Energy Data Access Committee Must Include Local Governments The PD establishes an Energy Data Access Committee (“Committee”) that will serve as a
first venue to review issues related to energy usage data. This will be very important, as even the
initial review of the PD identifies several areas that, unless corrected in the final decision, will be
subject to review by the Committee. The LGSEC appreciates that service on the committee is
open to “any party with an interest in data…without compensation.” The PD also specifies that
the Committee is able to bring forward recommendations that reflect diversity of opinion for
consideration by the Commission, if required. Parties also retain the option to bring a formal
Petition to the Commission.
The LGSEC appreciates recognition that all parties should be able to participate in the
Committee. It is obvious that the IOUs have resources to participate in the Committee that other
parties may not. This could lead to an unbalanced viewpoint within the Committee. We
encourage the Commission to include in the discussion of the Committee language that signals
the Committee should be a gathering of experts solving problems related to energy usage data,
rather than representing specific interests. In other words, members of the Committee should
leave their professional affiliations at the door. Otherwise, the Committee will become another
version of the Working Group that met last year, issuing complex reports that require significant
effort by the Commission to adjudicate.
The Commission should be clear in the final decision that it will revisit the work of the
Committee after two years to ascertain whether it is serving its intended purpose.
VII. Conclusion The PD provides progress on energy data issues. With further modification, as described
above, it can provide meaningful access to energy usage data.
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Respectfully submitted,
Jody S. London
For THE LOCAL GOVERNMENT
SUSTAINABLE ENERGY COALITION
P.O. Box 3629
Oakland, CA 94609
March 27, 2014
ATTACHMENT A: RECOMMENDED CHANGES TO FINDINGS OF FACT AND ORDERING
PARAGRAPHS
FINDINGS OF FACT
14. For residential accounts, data stripped of personal identifying information and aggregated to
at least a monthly time period and aggregated to the zip code geographic level, where a zip code
has 100 5 or more residential customers, is sufficiently aggregated to prohibit re-identification. It
is reasonable to require the public release of this data.
15. For residential accounts, data stripped of personal identifying information and aggregated to
at least a monthly time period and aggregated to the zip code level, should, when the zip code
lacks 100 5 residential accounts, be aggregated with the data from a bordering zip code (either
by adding it to a bordering zip code with 100 5 or more customers or by adding bordering zip
codes to equal 100 5 or more customers) until the aggregation includes at least 5 residential
customers. When the resulting area contains 100 5 or more residential accounts, that data is
sufficiently aggregated to prevent re-identification. It is reasonable to require the public release
of such data.
20. To encourage the use of usage data, it is reasonable to require that the data be made available
in a common data format(s), developed by the utilities in consultation with Commission Staff,
that includes zip code, customer class, and, for each month, the number of accounts, and total
consumption, and average consumption, and energy costs. At least one format must be machine
readable.
29. It is reasonable to limit the release of data aggregated at the census block group level to those
situations which serve a public purpose and to prohibit the subsequent disclosure of the raw data
by local government entities receiving the data. Contractors working for local governments on
development of plans and reports that require use of energy usage data shall be allowed to these
data provided the contractors sign the non-disclosure agreement.
30. It is reasonable to require utilities to provide aggregated census block data to local
government as outlined above, as long as the data from known solar customers are not included
because such atypical consumption patterns can facilitate identification.
31. Residential, commercial, agricultural, or industrial energy consumption data, anonymized
over a group consisting of 100 accounts in a single customer class and stripped of all personal
identifying information, cannot be re-identified when the group contains more than 100 accounts
and no single account amounts to more than 10% of the total energy consumption of the census
block group in an individual month. Such data should be aggregated to a least the monthly level.
It is therefore reasonable to provide this data to local government entities that request it.
Contractors working for local governments on development of plans and reports that require use
of energy usage data shall be allowed to these data provided the contractors sign the non-
disclosure agreement.
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34. There has not been a sufficient showing that ordering utilities to provide cities with Local
governments require information on the usage of individual buildings to meets the standards
required set forth in California law. If individual buildings have 5 or more accounts, energy
usage data for that building should be provided to local governments.
35. While data regarding individual customer accounts is Personally Identifiable Information,
data regarding individual buildings is not Personally Identifiable Information in cases where the
number of customer accounts and proportional energy usage thresholds set forth in Finding(s) of
Fact 14, 16, and/or 18 are met, as applicable.
Note: numbers of subsequent findings will move up one with addition of new FOF 35.
823. No data will be Utilities will provide quarterly reports detailing the data released to any
party pursuant to this decision less than 4 weeks after a letter to the Commission’s Executive
Director describing the transfer of data is transmitted.
ORDERING PARAGRAPHS
8. The Commission adopts an Energy Data Access Committee which Pacific Gas and Electric
Company, Southern California Edison Company, Southern California Gas Company and San
Diego Gas & Electric Company shall establish within six months of this decision’s adoption. It
shall consist of representatives from each of the utilities, Commission Staff, the Office of
Ratepayer Advocates, researchers who meet the qualifications outlined in this decision,
representatives of customer and privacy advocacy groups, local governments, and other
interested parties.