GOVERNMENT OF PUERTO RICO
PUBLIC SERVICE REGULATORY BOARD
PUERTO RICO ENERGY BUREAU
IN RE: GENERA PR, LLC, ELECTRIC COMPANY CERTIFICATE APPLICATION
CASE NO.: NEPR-CT-2023-0001
Received: Mar 26, 2025 12:45 PM
SUBJECT: REQUEST FOR FTI REPORT
ICSE’S MOTION REQUESTING ACCESS TO FTI REPORT
TO THE HONORABLE ENERGY BUREAU:
Comes now the Institute of Competitiveness and Economic Sustainability (“ICSE” as its Spanish acronym), represented by the undersigned, respectfully states and prays:
On February 27, 2025, the Puerto Rico Electric Power Authority (PREPA) and Genera PR, LLC jointly appeared before the Puerto Rico Energy Bureau (PREB) in the present case filing a document titled Joint Motion to Request Preliminary Approval for Amendments to Genera’s Operation and Maintenance Agreement (the “Joint Motion”). In this document, PREPA and Genera informed this PREB about the amendments agreed upon by Genera, PREPA, and the Public-Private Partnerships Authority (P3A), the agency that represents PREPA under the partnership agreement that is intended to be amended (also known as the “GOMA”).
In the Joint Motion, PREPA-Genera attached a report that allegedly includes a costbenefit analysis prepared by FTI Consulting (hereinafter, the “FTI Report”). This document, which is fundamental to the public discussion of the economic viability of the GOMA amendment, was filed under seal of confidentiality.
Given this background, ICSE hereby requests access the FTI Report, a public document created at the request of the P3A and under this Bureau’s custody, under the constitutional right to free expression as interpreted and implemented by the Supreme 1
Court of Puerto Rico in Soto v. Secretary of Justice, 112 DPR 477 (1982), and its subsequent case law. This document also serves as the prior formal request required by the Supreme Court’s case law to activate the jurisdiction of the Court of First Instance for filing a writ of mandamus should this Bureau deny or ignore the request to provide access to the FTI Report.
I. Legal Basis for Granting Access to the FTI Report
Let us begin by establishing that the FTI Report is a public document. In Bhatia Gautier v.Governor, 1 the Supreme Court set forth the following definition:
[A]ny document that originates, is maintained, or received in any agency of the Commonwealth of Puerto Rico in accordance with the law or in relation to the management of public affairs and that, pursuant to Section 1002 of this title, is required to be permanently or temporarily preserved as evidence of transactions or for its legal value. This includes electronically produced documents that meet the requirements established by laws and regulations 2
When a document meets these characteristics, citizens have the right to request access to such information, and the State may only validly deny access under limited circumstances.
The legal precedent established in Soto v. Secretary of Justice3 and subsequent cases compels the conclusion that the FTI Report is discoverable material for the public and, particularly, for ICSE as petitioner. As the Supreme Court stated in Soto: “The premise is simple. Without knowledge of the facts, one cannot judge; nor can remedies be sought for governmental grievances through judicial proceedings or the electoral process every
1 Bhatia Gautier v. Governor, 199 DPR 59 (2017).
2 Id., p. 83 (citing article 3(b) of the Public Documents Administration Act of Puerto Rico, Act No. 5 of December 8, 1955, 3 LPRA § 1001.
3 Soto v. Secretary of Justice, 112 DPR 477 (1982).
four (4) years.”4 Later, the Court analyzed the consequences of recognizing the right of access to information in Dávila v. Superintendent of Elections:5:
The passage of time […] has demonstrated the need to reaffirm the constitutional dimension of the right of access to information for the press and the general public. Our democracy, if it is to survive, must be invigorated in this vital area with liberal currents 6
In Dávila, the Court enshrined fundamental principles of citizen governance:
The citizens of a self-governing society must possess the legal right to examine and investigate how their affairs are conducted, subject only to the most urgent public necessity. This right must be elevated to a position of the highest sanctity if it is to serve as a bulwark against unaccountable leadership.7
The informational vulnerability of society cannot be justified by vague or generic arguments. As the Supreme Court clearly established: “In this context, mere generalizations and arbitrary reasoning are insufficient.”8
In a case from earlier this decade, Kilómetro O, Inc. v. Pesquera López, it was reiterated that:
Knowledge allows citizens to evaluate and oversee the public function adequately, while contributing to effective citizen participation in government processes that impact their social environment. In this way, transparency in the government function is added and a healthy public administration is promoted. 9
4 Id , p. 485.
5 Dávila v. Superintendent of Elections, 82 DPR 264 (1960).
6 Soto, p. 486.
7 Dávila n 9, p. 281 (citing Access to Official Information: A Neglected Constitutional Right, 27 Ind. L. J. 209, 212 (1952)) (emphasis ours).
8 Engineering Services International, Inc. v. PREPA, 205 DPR 136, 160 (2020).
9 Kilometro O, Inc. v. Pesquera López, 207 DPR 200, 208 (2021) (internal citations omitted) (our emphasis).
Along the same lines and even more pertinent to the case at hand, the Supreme Court ruled Engineering Services International, Inc. v. Electric Power Authority 10 In this case, PREPA objected to releasing the final resolutions of its Governing Board. The Supreme Court ruled in the same way as the cases described above: in favour of the disclosure of public documents. However, the Court was more emphatic from the statutory point of view. The Court interpreted the public policy outlined in Act 57-2014 in this way:
[A]review of the provisions of the Puerto Rico Electric Power Authority Act, in light of the public policy established by the Energy Transformation and RELIEF Act, leads again to the inevitable conclusion that public access to the requested resolutions was envisioned. As we explained, the Energy Transformation and RELIEF Law expressly implemented a public policy in favor of the transparency of PREPA’s efforts. As a result, it strengthened access to PREPA information by providing that all information received and created by PREPA must be disclosed in a timely manner, in its entirety, and through an electronic portal. It also reiterated that PREPA's information should not be subject to broader confidentiality rules than necessary.11
From a cursory reading of the opinion, it must be understood that our Court recognizes the principle of transparency as one that governs the energy sector. Despite originating from constitutional interpretation, its statutory modality should not be understood as equal or inferior, but superior. Otherwise, it would be understood that the principles of transparency and citizen participation framed in Act 57-2014 are superfluous and a mere repetition of the constitutional norm. The Court understood this when it interpreted that this piece of legislation “strengthened access to public information.”12 Note also the following goal established in subsection (10)(c) of Article 1.5 of Act 17-2019: “Promote transparency and citizen participation in all processes related to energy service in Puerto Rico ”13
10 Engineering Services International, Inc. v PREPA, 205 DPR, at p. 160.
11 Id., p. 162 (emphasis added).
12 Id.
13 Art. 1.5(10)(c) of the Puerto Rico Energy Public Policy Act, Act 17-2019, 22 LPRA § 1141d (ours emphasis).
II. Content of the Joint Motion
The Joint Motion reproduces some general arguments about the desirability of the proposed amendment that are not sufficient for the public to conclude its value. This is because the entire basis rests on referring to the FTI Report, which is alleged to have a “comprehensive cost-benefit analysis” on the benefits of the proposed amendment, since it allegedly “highlights the significant financial and administrative advantages of eliminating the Fuel Optimization Plan incentives.”
However, the rest of the brief only maintains the confidential nature of a report in which the privilege of attorney-client and business secrets supposedly applies. First, there is no merit in alleging the existence of an attorney-client privilege to conceal a publicly funded report that serves as the basis for amending a public contract. FTI, to the best of our knowledge, is not a law firm and the FTI Report is a financial and administrative instrument, as alleged in the Joint Motion.
There are also third parties involved: Genera, FTI, PREPA, and the P3A. Therefore, it is not reasonable to conclude that there is an expectation of confidentiality in attorneyclient communication.14 This is the rule adopted by the Supreme Court of Puerto Rico: “[t]he presence of third parties who have nothing to do with legal advice is an indication that there is no expectation of confidentiality.”15
Notwithstanding the foregoing, we insist that the dispositive element is that there is no such thing as the attorney-client privilege given that the FTI Report is not a legal document.
Now, with respect to the approach of the existence of a trade secret, the question is: Whose trade secret is it? The Joint Motion lacks specificity in this regard. Nowhere is the
14 Pagán v. First Hospital, 189 DPR 509, 533 (2013) (citing Chiesa, Puerto Rico Rules of Evidence, at p. 151).
15 Id
beneficiary of this right identified.16 Certainly, the P3A cannot claim that it as a public entity has a trade secret.17 Likewise, there is no room to allege that PREPA owns any.
Genera is an agent of a public corporation, therefor, analysis must be conducted as if its actions were those of the State. This, by definition, should disqualify it as a beneficiary of the right because all information held by this corporation is essentially public information which would be susceptible to disclosure if PREPA continued to operate its generation assets. Alliance contracts cannot serve as an instrument to hide information that the State is otherwise constitutionally obliged to make available to the public. Any action carried out by a private operator of public assets, is then what is known by constitutional doctrine as a state action. Genera is an arm of the State. In addition, the claim of confidentiality under the trade secrets doctrine is based on the existence of a competitive advantage. Genera has a legal monopoly on the operation of PREPA’s generation assets. The interest of competition does not exist, so the protection of trade secrets is not justified.
Finally, it remains for us to evaluate the existence of a trade secret of the draftsman of the FTI Report themselves. It seems absurd that an entity hired for the specific purpose of producing reports and financial advice material with public funds can then hide such a public product under the cloak of trade secrecy.
None of these four entities can claim the existence of a trade secret that prevents the disclosure of the FTI Report.
III. Confidentiality in the approval of Public-Private Partnership Contracts
An important observation of Acts 29-2009 and 120-2018 is that references to confidentiality are exclusively “during the processes of evaluation, selection and
16 They also did so with attorney-client privilege.
17 The P3A is the contracting entity with FTI.
negotiation with the Proponents” of the proposed partnership contracts.18 Nothing in the aforementioned statutes addresses what guarantees of confidentiality the Proponents will have in the negotiation of amendments. The reason is clear: because the interest is to protect the confidential information of the Proponents when they are really proponents. Protection at the pre-contractual stage is justifiable and even essential because otherwise any bidder would take the unreasonable risk that its competitors (including those who were not bidders) would benefit from its proposal.
Once the alliance contract is granted, it becomes public and requires publicity. The legislation even requires advertising “minimally [...] to provide public access [...] to the desirability and convenience study related to an Alliance; documents produced by the [P3A] requesting qualifications and soliciting proposals related to an Alliance; to the Alliance Contracts and any subsequent amendments thereto, and to the report, including amendments thereto, prepared for the Alliance Committee.”19 Note that this is a nonexhaustive list of documents that must be made public in order to comply with the legislative intention enshrined in the Exposition of Motives to “encourage transparency on the part of the State in the negotiation and agreements for the signing of contracts” . In other words, the general rule is openness at its best.
In the process of seeking an amendment to an existing contract, it is then required that it be public. That is, as previously established, because we are facing a process where there are no competitors/proponents who could benefit from the disclosure of the precontractual process. In order for Genera to be entitled to the privacy granted to it by Act 29-2009, it would have to bid under a new competitive process. Presumably, the Government’s intention is not to open a new auction process by a mere contractual modification. However, it is exclusively in this context that the exceptional rules of restriction to public information operate and not by a mere variation of the terms of the alliance contract.
18 Article 9(i), 27 LPRA § 2608.
19 Id., (j).
So, there is no public policy reason under Acts 29-2009 and 120-2018 to deny access to the FTI Report.
IV. Conclusion
In short, there is no strict public policy consideration for restricting access to the FTI Report. The constitutional mandate is unequivocal, and the public policy enshrined in Acts 57-2014 and 17-2019 strengthen this right to access public information, as resolved by our Supreme Court. The Alliance Agreement between Genera and PREPA is a contract of very high public interest given that it administers Puerto Rico’s generation assets. In the 21st century, energy issues have a very high place in our society. So much so that these debates define the election processes. Citizens therefore have the right and one could even argue the duty to know the reasonableness of the decisions in the energy field.
The Governor has stated in press conferences that the proposed amendment will generate savings amounting to $860 million for the electric system. The administration cannot seek to benefit politically by introducing into the public discussion an issue such as the alleged savings from this transaction while simultaneously suppressing access to the relevant information namely, the report that evaluates said “benefit.”
Democracies do not exist so that citizens simply accept what their elected leaders say and then bury their heads in the sand. This conduct by the Governor also constitutes a waiver of the confidentiality that Genera-AEE seeks to invoke, unless the reality is that the Governor is pointing to financial benefits without having reviewed the FTI Report beforehand—even more so when the Governor has made public the alleged benefits of the transaction, benefits which can only be substantiated through a serious cost-benefit analysis.
Transparency and citizen participation cannot be meaningfully promoted when entities such as PREPA, Genera (as PREPA’s agent), and the P3A withhold access to the FTI Report. Access to this public document is therefore formally requested. Yet the
Energy Bureau is not a passive observer in this failure of disclosure. This request is grounded not only in the Report’s status as a public document prepared at the P3A’s behest—but also in the fact that it was received and maintained by the Bureau. The constitutional claim is not the only one at stake; the Bureau’s enabling statute, Act 572014, enshrines transparency and access to information as its core purpose. As ICSE has previously noted, the persistent secrecy surrounding energy governance has been enabled by the Bureau’s undue deference to confidentiality claims by its regulated entities. The Bureau must recognize that it has played a part in fostering a culture of secrecy that has surfaced in the administration of the issues under its purview and take active steps to mitigate this public harm
Nothing in this writing should be construed as a waiver of any right or legally valid argument that may be raised before a court of competent jurisdiction.
WHEREFORE, it is respectfully requested that this Energy Bureau publish the FTI Report
RESPECTFULLY SUBMITTED
In San Juan, Puerto Rico, March 26, 2025.
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