Electricity Industry Participation Code 2010

• (1) A participant may request the Authority to make available to the participant (the requesting participant) any Code information held by the Authority or by any other participant.
• (2) The request must specify, with as much particularity as possible, the nature of the information sought and the name of the participant who is believed to hold the information.

If the Authority receives a request for the supply of Code information that the Authority holds, the Authority must—

• (a) consider and process the request in accordance with the Official Information Act 1982; and
• (b) if the Authority proposes to provide the information to the requester, give prior written notice to the participant that supplied the information to the Authority.

The rest of this Part applies if the Authority receives a request for the supply of Code information that the Authority does not hold.

The Authority must, as soon as practicable after receiving a request for Code information that it does not hold, send a written notice to the participant who the Authority believes holds the relevant Code information—

• (a) giving the participant written notice of the request made to the Authority, and the name and address of the requesting participant; and
• (b) requesting the participant to either—
  • (i) supply the information, together with a note of the participant’s charges (if any) in relation to the supply of information; or
  • (ii) supply reasons for refusing to supply the information.

A participant who receives a request under clause 2.4(b) must consider that request in accordance with clauses 2.6 to 2.8.

• (1) The general principle to be followed by participants in relation to Code information is that Code information should be made available to all participants unless there is good reason for refusing to supply it.
• (2) A participant has good reason for refusing to supply Code information if the supply of the information would be likely to—
  • (a) breach a legislative, regulatory, or other legal requirement; or
  • (b) prejudice the maintenance and supervision of this Code, including the prevention, investigation, and detection of Code breaches and the right to a fair hearing before the Rulings Panel; or
  • (c) result in a disclosing participant breaching an obligation of confidentiality; or
  • (d) interfere with the privacy of natural persons; or
  • (e) create an improper gain or improper advantage for the requesting participant or any other participant or person; or
  • (f) commercially disadvantage the disclosing participant or any other participant or person, in a material manner; or
  • (g) prejudice the future supply of information that is required by a market operation service provider to perform any obligation under this Code.

A participant may also refuse to supply Code information if—

• (a) the information requested is, or will soon be, made available to the public; or
• (b) the information requested does not exist or cannot be found; or
• (c) the information requested cannot be made available without substantial collation or research and the Authority agrees that it is unreasonable to undertake the collation or research; or
• (d) the request is frivolous or vexatious or the information requested is trivial.

• (1) This clause applies if—
  • (a) a notice is sent to a participant under clause 2.4(b); and
  • (b) the information to which the request relates—
    • (i) is not held by the participant but is believed by the person dealing with the notice to be held by another participant; or
    • (ii) is believed by the person dealing with the notice to be more closely related to the activities of another participant.
• (2) The participant to which the notice was sent must promptly, and in any case not later than 10 business days after the day on which the notice is received, transfer the notice to the other participant, and inform the Authority accordingly.

A participant must, so far as is reasonably practicable without materially affecting its business or its ability to meet its obligations under this Code, avoid entering into an obligation with a person that would have the effect of prejudicing that participant’s ability to comply freely with the provisions of this Part.

A participant must, as soon as practicable after considering a request, inform the Authority and the requesting participant of whether it agrees or refuses to supply all or part of the Code information requested.

• (1) If a participant agrees to supply all or part of the Code information requested, the participant must, as soon as practicable,—
  • (a) inform the Authority and the requesting participant of the information that will be supplied, and the amount of any charges to be paid for the supply of that information under clause 2.12; and
  • (b) supply that information, with any deletions authorised by clause 2.13, to the Authority.
• (2) The Authority must, as soon as practicable after receiving the information, and any charges required to be paid in respect of it by the requesting participant, send the information to the requesting participant.

• (1) A participant that supplies Code information may charge the requesting participant for—
  • (a) the reasonable cost of labour and materials involved in supplying the information to the requesting participant; and
  • (b) any additional costs incurred as a result of a request for urgent availability.
• (2) The participant that supplies the Code information, or the Authority, may require the whole or any part of the charge to be paid in advance by the requesting participant.

If the Code information requested is contained in a document, and there are good reasons for refusing to supply some of the information contained in the document, the participant supplying the information may supply a copy of the document with any deletions or alterations that are necessary.

• (1) If the participant refuses to supply all or any of the Code information requested, the participant must, as soon as practicable, give written notice to the Authority and the requesting participant of both the refusal and of the reasons for the refusal.
• (2) The Authority must, as soon as practicable after receiving the notice, advise the requesting participant of its rights to appeal under clause 2.15.

A requesting participant who receives written notice under clause 2.14 that another participant refuses to supply any Code information may appeal that refusal by notice of appeal to the Rulings Panel.

• (1) The Authority may publish a notice specifying information that a participant must, on a regular basis or as a result of an identified event, provide to the Authority.
• (2) The Authority may specify information under subclause (1) only for the purposes set out in section 45(a) of the Act being to carry out the Authority’s monitoring functions which are to—
  • (a) monitor compliance with the Act, the regulations and the Code under section 16(1)(c) of the Act; or
  • (b) undertake and monitor the operation and effectiveness of market-facilitation measures under section 16(1)(f) of the Act; or
  • (c) undertake industry and market monitoring, and carry out and make publicly available reviews, studies, and inquiries into any matter relating to the electricity industry, under section 16(1)(g) of the Act.
• (3) The Authority may not specify information under subclause (1) for the purpose of investigating or enforcing compliance with the Act, the regulations and the Code except that it may use information obtained under a notice published under subclause (1) in the course of making a decision to appoint an investigator under regulation 12 of the Electricity Industry (Enforcement) Regulations 2010.

• (1) In a notice published under clause 2.16, the Authority must specify the following information requirements:
  • (a) the participant who must provide the information:
  • (b) the information the Authority requires the participant to provide, to a reasonable level of detail:
  • (c) either:
    • (i) the time and/or the frequency at which the participant must provide the information to the Authority; or
    • (ii) the event following which the participant must provide the information to the Authority and the time by which the participant must provide the information
  • (d) the manner in which the participant must provide the information to the Authority:
  • (e) the date from which the notice applies, which can be different dates for different participants.
• (2) In a notice published under clause 2.16, the Authority may specify 1 or more standard formats in which the participant must provide the information to the Authority.

• (1) Before publishing a notice under clause 2.16, the Authority must provide to the participant to whom the proposed notice applies—
  • (a) the proposed notice; and
  • (b) the Authority’s purpose in setting the information requirements in the proposed notice; and
  • (c) the Authority’s assessment of the likely benefits of the Authority obtaining the information required in the proposed notice and whether those benefits are expected to outweigh the likely costs.
• (2) The Authority must give that participant a reasonable opportunity to make submissions to the Authority on the proposed notice and take into account those submissions in deciding whether to—
  • (a) make any reasonable changes to the information requirements to be included in the published notice; and
  • (b) publish the notice.
• (3) The Authority may, but is not required to, consult with any other person the Authority wishes, following whatever consultation process the Authority considers appropriate.
• (4) If, following the consideration of submissions under subclause (2), the Authority proposes to extend the number of participants to whom it proposes the notice will apply, the Authority must consult with those additional participants following the process in subclauses (1) and (2) if it has not already.

• (1) Before publishing a notice under clause 2.16, the Authority must be satisfied that—
  • (a) the benefits of the Authority obtaining the information outweigh the costs of the information requirements set out in the proposed notice; and
  • (b) the information requirements set out in the proposed notice promote one or more of the Authority’s objectives in section 15 of the Act.
• (2) Before publishing a notice under clause 2.16, the Authority must consider the impact of the proposed information requirements on each participant to whom it is proposed the notice apply.

• (1) If the Authority publishes a notice under clause 2.16, each participant to whom the notice applies must—
  • (a) collect and record the information specified in the notice; and
  • (b) collate from its own systems, records and/or information the information specified in the notice; and
  • (c) provide to the Authority the information specified in the notice; and
  • (d) meet the other information requirements specified in the notice.
• (2) A participant does not need to provide any information to the Authority under subclause (1)(c) if—
  • (a) the participant has legal professional privilege in respect of the information; or
  • (b) it is not reasonably possible for the participant to obtain that information, including because the person that holds the information may lawfully refuse to provide the information to the participant.

• (1) In supplying information under clause 2.20, a participant may identify any information for which confidentiality is sought by reason that—
  • (a) disclosure of the information would unreasonably prejudice the commercial position of the participant or the person who is the subject of that information; or
  • (b) confidentiality is necessary to protect information which is itself subject to an obligation of confidence; or
  • (c) if clause 2.20 did not apply, disclosure of the information by the participant would be in breach of law.

• (1) If a participant identifies to the Authority any information under clause 2.21, the Authority will determine whether—
  • (a) there are reasons for keeping the information confidential; and
  • (b) if there are reasons to keep the information confidential as determined by the Authority, those reasons are outweighed by other considerations which render it desirable for the Authority to make all or any part of the information publicly available in order to give effect to one or more of the Authority’s objectives in section 15 of the Act and for the purposes of any of the Authority’s functions in either:
    • (i) section 16 of the Act; or
    • (ii) section 14 of the Crown Entities Act 2004.
• (2) If the Authority does not consider under subclause 1(a) that there are reasons for keeping the information confidential, the Authority is not required to keep the information confidential.
• (3) If the Authority considers that it is desirable under subclause 1(b) to make all or any part of the information publicly available, the Authority—
  • (a) is not required to keep the information confidential; and
  • (b) will inform the participant of that decision, provided that doing so is reasonably possible in the circumstances and does not compromise the reasons for making the information publicly available.
• (4) If the Authority considers under subclause 1(a) that there are reasons for keeping the information confidential and does not consider that it is desirable under subclause 1(b) to make all or any part of the information publicly available, subject to subclause (5), the Authority must keep the information identified by a participant under clause 2.21 confidential.
• (5) Subclause (4) does not prevent the Authority from—
  • (a) using the information identified under clause 2.21 for any purpose in connection with one or more of the Authority’s objectivesin section 15 of the Act or the Authority’s functions in section 16 of the Act or section 14 of the Crown Entities Act 2004; or
  • (b) disclosing the information to any person in connection with a purpose referred to in paragraph (a) in anonymised form or in consolidated form with other information such that the reasons for keeping the information confidential are not compromised; or
  • (c) disclosing the information where the participant who supplied the information or the person who is the subject of the information (if different from the participant) either:
    • (i) has consented specifically to the disclosure of that information; or
    • (ii) has consented generally to the disclosure, even where the participant identifies the information as confidential under clause 2.21, of:
      • (A) information specified in the notice published under clause 2.16 under which the participant supplied the information to the Authority; or
      • (B) a category of information specified in the notice published under clause 2.16 under which the participant supplied the information and the Authority reasonably considers the information that it intends to disclose comes within that category; or
  • (d) disclosing the information as required by or under law.

The Authority must comply with section 48(2) and 48(3) of the Act in respect of information that is subject to privilege against self-incrimination.

• (1) The Authority may amend a notice published under clause 2.16 following the procedure set out in clause 2.18 and complying with clause 2.19.
• (2) The Authority does not need to consult under clause 2.18 on a proposed amendment to a notice if it is satisfied on reasonable grounds that—
  • (a) the nature of the amendment is technical and non-controversial; or
  • (b) there is widespread support for the amendment among the participants to whom the notice applies and to whom the proposed amendment will apply; or
  • (c) there has been adequate prior consultation (for instance, by or through an advisory group) so that all relevant views have been considered.