Lodi News-Sentinel

California water well info can remain secret, federal appeals court rules

- By Michael Doyle

WASHINGTON — Crucial details about the location and depth of certain California water wells can be kept secret, and out of the hands of an environmen­tal group, a top federal appeals court ruled Tuesday.

Although targeting a specific request for California informatio­n, the ruling by what’s sometimes called the nation’s second-highest court could shape at least a few of the other Freedom of Informatio­n Act requests nationwide. More than 700,000 FOIA requests were filed in fiscal 2014, and the question of what can be denied recurs often.

Tuesday’s unanimous decision lumped water wells with those drilled for oil and gas production. The U.S. Court of Appeals for the District of Columbia Circuit said that the water well informatio­n fits under a long-standing exemption to FOIA. The decision thwarted AquAllianc­e, the Chicobased group that sought the informatio­n.

“There may be ‘water, water, everywhere,’ but nary a water well to be found,” Judge Patricia Millett wrote. “AquAllianc­e wants to know where the wells are, but ... the government’s withholdin­g was permissibl­e.”

Championed by the late Sacramento congressma­n John Moss, and signed by a reluctant President Lyndon B. Johnson in 1966, the Freedom of Informatio­n Act includes nine exemptions that allow federal agencies to withhold certain materials from public release.

One exemption covers “geological and geophysica­l informatio­n and data, including maps, concerning wells.” Customaril­y considered to be designed for oil-and-gas informatio­n, it is a relatively rarely used exemption.

In 2015, for instance, the Interior Department only invoked the wells-related exemption seven times in response to FOIA requests, according to the department’s reports. By contrast, the exemption covering personal and medical records was employed 1,416 times by agency officials.

But while the lawmakers who crafted the Freedom of Informatio­n Act decades ago described the exemption for wellrelate­d documents “as protecting oil and gas companies from competitor­s eager to freeload on the companies’ research investment­s,” Millett said, the black-and-white language and the accompanyi­ng committee report opened the door for other uses.

“Nothing in the House report says that protecting oil and gas companies was the House’s only concern,” Millett wrote, adding that “the proper course, instead, is for this court to assume that Congress meant what it said, and said what it meant.”

An Obama administra­tion appointee, Millett joined with Judge Janice Rogers Brown, a Republican appointee who formerly served on the California Supreme Court, and another Obama appointee, Judge Robert L. Wilkins, in the ninepage decision. Together, the three judges upheld a trial judge’s earlier decision likewise rejecting AquAllianc­e’s FOIA challenge.

A nonprofit organizati­on that describes itself as “dedicated to defending Northern California waters” and to challengin­g threats to the hydrologic health of the northern Sacramento River watershed, AquAllianc­e voices concern about transferri­ng water south of the Sacramento-San Joaquin Delta. In 2013 and 2014, the group filed FOIA requests with the Bureau of Reclamatio­n for informatio­n about water transfers.

The bureau eventually turned over some informatio­n, but redacted details about water-well constructi­on, completion, depth and location, citing the FOIA exemption.

 ?? BRIAN VAN DER BRUG/LOS ANGELES TIMES FILE PHOTOGRAPH ?? Fracking fluids flow into containmen­t tanks on a fracked oil well on March 16, 2015, near Bakersfiel­d. The canal moves oil produced water mixed with fresh water for use by Kern County agricultur­e.
BRIAN VAN DER BRUG/LOS ANGELES TIMES FILE PHOTOGRAPH Fracking fluids flow into containmen­t tanks on a fracked oil well on March 16, 2015, near Bakersfiel­d. The canal moves oil produced water mixed with fresh water for use by Kern County agricultur­e.

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