The case represented a major test of Oregon public records law. After The Oregonian/OregonLive requested Google’s records last year, The Dalles sued the news organization to prevent the information’s release. It argued Google’s water use was a “trade secret” exempt from Oregon disclosure requirements.
The city has now given up that effort. In a settlement filed Wednesday with Wasco County Circuit Court, The Dalles agreed to provide 10 years of water use data for Google and to provide annual water usage in future years.
The Dalles will also pay $53,000 to cover the legal costs for Reporters Committee for Freedom of the Press, the nonprofit advocacy group that represented The Oregonian/OregonLive in the case.
The city said Wednesday that its own legal costs total $106,000, and that Google has committed to covering those expenses as well as the $53,000 settlement.
That arrangement raises questions about governments’ willingness to defer to large companies on matters of transparency, in addition to the underlying issue of how public utilities manage their water.
“The information itself is of the highest public interest,” said Ellen Osoinach, the RCFP attorney who represented The Oregonian/OregonLive in the case.
“This is a limited, communal resource and the West is in a drought,” Osoinach said. “There are data centers all over the country and right here in Oregon, and the amount of water they consume is something that’s incredibly important to all water users.”
The city committed to providing the information on Google’s water use within one day of the settlement becoming effective. That means the information could be available this week. The Dalles committed to making information on Google’s water use available to The Oregonian/OregonLive and to anyone else who requests it.
“This seemed to be a perfect example of a clash of two important storylines, both the expansion of big businesses and the public resource that they need to use,” said Therese Bottomly, editor of The Oregonian/OregonLive. “So we think Oregonians should have all the information that they have a right to, to make the best decisions.”
The Dalles negotiated a new water rights agreement with Google last year, a $28.5 million deal that obliges the Silicon Valley company to pay for an upgrade to the city’s water system and entitles it to a share of the additional water made available after the project.
Google and other technology companies use water to cool the high-performance computers that run data centers. The company had indicated the additional water would enable the company to build more data centers in the city. Google has since won administrative approval to build one new data center but hasn’t said when or if it will proceed.
The water deal attracted national attention as environmentalists, farmers and tribal leaders questioned whether The Dalles’ commitments to Google would limit water available for other purposes.
When The Oregonian/OregonLive inquired as to how much water Google was already using, the city refused to disclose it — even after the Wasco County district attorney ordered the city to provide the records. Many other Oregon jurisdictions, including Hillsboro, Prineville and Broadman, readily provide details about water use by major utility customers.
The Dalles sued to block the information’s release, though, arguing that Google’s water use represented a “trade secret.” The Dalles City Council approved the water rights deal soon afterward but kept the water use secret for more than a year while the case moved toward trial.
“Our attorneys very strongly felt, and convinced us, that we had a very good case, that the water use was in fact a trade secret,” said Richard Mays, The Dalles’ mayor, in an interview Wednesday. “Google was concerned about competitors knowing how they cool their servers.”
Ultimately, though, Mays said Google changed its position and agreed to release the water records. “That’s why we backed off,” he said.
Some city council members said last year they wished the public had access to Google’s water usage before voting to approve the water deal. But the council members voted unanimously in favor of the agreement, anyway, after the city agreed to provide the council with access to the information.
On Wednesday, Mays said he didn’t think it was necessary for the public to have details about Google’s water use before that agreement.
“They’re going to know now, so I don’t really see it’s a big deal,” Mays said.
Google declined comment on the settlement or its expansion plans in The Dalles.
Allowing Google to finance the city’s legal fight introduces other concerns about how The Dalles was applying Oregon public records law, according to Tim Gleason, former dean of the University of Oregon’s School of Journalism and Communication.
“The private money funding public litigation distorts the entire public process and harms the public interest,” said Gleason, now a professor emeritus at the university.
The Legislature probably never considered the possibility of a private company bankrolling an effort to seal public records, Gleason said. Now that it’s happened, he said lawmakers should revisit the public records law to prevent private businesses from keeping public information away from the public.
“That turns everything on its head,” he said. “To allow a private entity to essentially fund public advocacy of keeping something out of the public domain is just contrary to the basic intent of the law.”
The problem, Gleason said, is that The Dalles City Council voted on the water rights deal while litigation funded by Google kept information about the company’s water use hidden from constituents.
“The city council has been making decisions based on information the public did not have access to throughout this process,” he said. “Presumably, had Google not been funding this litigation (that) would not be the case.”
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