THE DALLES — The City of The Dalles is looking to appeal the decision recently made by District Attorney Matthew Ellis that would require them to release data related to Google’s water usage to The Oregonian.
On Sept. 24, Mike Rogoway, reporter for The Oregonian, made a request for total industrial water over the last five years, as well as Google’s water use last year. Within hours, City Attorney Jonathan Kara denied both requests. The first was denied because the city is not the custodian of those records. The second, however, was claimed to be exempt under the “trade secrets” exemption.
On Oct. 7, Rogoway filed an appeal petition and sent it to Ellis, asking that he overturn the decision made by the city, requiring the city to grant The Oregonian access to the records in question.
The city responded to this on Oct. 12, detailing why they believed their decision was legal. In their response, they claimed that the data pertaining to Google’s water usage is a trade secret because it “would, if disclosed to Design’s competitors, do substantial harm to Design’s and Google’s competitive position.”
Kara goes on to write that a trade secret constitutes any piece of information (formula, plan, mechanism, etc.) that is not patented and is only known to certain members of an organization, is used within that organization, and “gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.”
The city’s response said Google’s water usage fit those requirements, especially considering that employees are expected to sign confidentiality and non-disclosure agreements.
Additionally, Kara wrote that trade secrets are only need to be disclosed when public interest requires disclosure. Because the city has that information already, it’s not necessary for the public to have the information as well, Kara wrote. In fact, it could cause “substantial harm.”
After this response was sent, Rogoway replied once again in a letter to Ellis on Oct. 13, arguing many points made by Kara in the city’s letter. Rogoway points out that the burden of proof as to this “substantial harm” is on the city, but no evidence, “not a shred,” has been provided.
The letter goes on to say that The Oregonian has attained three different NDAs the city has made with Google and none of them mention “water,” “use,” “usage,” or “consumption.”
Furthermore, according to Rogoway’s rebuttal, Google’s water consumption data in South Carolina is publicly disclosed, meaning it can’t be a true trade secret. They also point out that the city expresses concern for Google’s interests over that of the public.
“The public interest requires release of the information so that residents of The Dalles and all Oregonians can assess whether we are getting a good enough deal from Google,” Rogoway concludes in his letter.
On Oct. 15, Ellis made his official decision, in which he granted Rogoway’s petition. Ellis wrote that the city had not shown adequate evidence to indicate the water usage was a valid trade secret. However, he did not address whether or not the knowledge would be considered in the public interest, as it was unnecessary given that water usage was not a trade secret.
Ellis then ordered the City of The Dalles “promptly disclose all records responsive to this request.”
On Oct. 22, Kara filed a complaint about the ruling, stating the city’s intent to appeal the decision to the circuit court. This would need to be done by Oct. 29.
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