Committee hears AB46 to clarify privilege protection for information shared with Public Utilities Commission

The Assembly Committee on Growth and Infrastructure took testimony on Assembly Bill 46, a measure proposed to clarify the privileged status of information shared with the Public Utilities Commission of Nevada (PUCN) and its regulatory operations staff in the context of utility regulation.

General Counsel Garrett Weir of the Public Utilities Commission told the committee the bill is intended to "preserve the privilege" of information — including trade secrets and other privileged materials — when shared confidentially with the commission or its regulatory operations staff during regulatory proceedings. "When information is shared pursuant to the regulatory process for the commission, this occurs confidentially," Weir said, adding that protective agreements and statutory duties require confidential treatment.

Nut graf: The bill aims to reduce utility reluctance to share privileged materials with regulators by clarifying that providing such information to the commission does not waive privilege; stakeholders, however, raised concerns that a recently proposed conceptual amendment could broaden protections and create unintended legal consequences.

Weir and representatives of major utilities said the intent is not to expand or restrict the commission's existing investigatory powers but to reassure utilities that sharing privileged materials with the PUCN will not forfeit those privileges. "We want to proactively address that concern and encourage that sharing of information," Weir said.

Tony Sanchez, executive vice president of business development and external relations for NV Energy, said the conceptual amendment is intended to "foster greater transparency in proceedings before the Commission" and to codify practices already used to protect privileged material when voluntarily shared. Sanchez said the amendment "does not mandate that we have to disclose privileged information" and that chapter 49 and other confidentiality laws continue to apply.

However, several speakers warned the amendment text circulated for the hearing appears broader than sponsors' stated intent. Lucas Feleta, counsel for Boyd Gaming Corporation and others, said section 6 of the amendment—if read broadly—could be interpreted to create a new, near-absolute privilege for any material transmitted to the commission and could shield documents from civil liability or public scrutiny. "If you look at section 6, it says any communication or document of the public utility transmitted to the commission ... is absolutely privileged. That creates, in my mind, a new privilege," Feleta said, and he voiced concern that the language could be used as a "liability shield."

Ernest Figueroa, chief deputy attorney general and head of the Bureau of Consumer Protection, participated by phone and said he supports AB46 as introduced and is willing to work with stakeholders on the conceptual amendment, but he echoed concerns about potential overbreadth in the amended language. A caller identified as Kim Fergus testified in opposition, arguing the bill would favor utilities and expand secrecy to the detriment of consumers, citing concerns about rate increases and the role of the PUCN.

Committee members asked technical questions about privilege law. Assemblymember Backus queried whether the bill's intent was to prevent waiver of privileges under chapter 49 (Nevada's statutes on privileges); Garrett Weir pointed to NRS 703.195 as the statutory provision governing the commission's authority to examine utility books and records and described the bill as a clarification that would preserve privilege when materials are provided to the commission. Weir said the commission and utilities have engaged on a conceptual amendment and expect further edits to reach consensus.

No court rulings resolving the precise question raised by the bill were identified during the hearing; Weir said stakeholders have not had instances where a court ultimately resolved the waiver question. He framed the measure as prophylactic: an attempt to reduce disputes about whether providing privileged information to the regulator waives privilege and to facilitate cooperation in investigations and contested cases.

Ending: The committee heard support from utilities and regulatory staff, cautious support from the Bureau of Consumer Protection contingent on amendment language, and consumer opposition by phone. Sponsors and stakeholders indicated they would continue to negotiate amendment language to address concerns about scope and potential downstream effects on civil liability and third-party access.