Politics & Government

Oh, well. California water info can remain secret, court rules

In this July 13, 2015, file photo, a pipeline carries water drawn from wells in the San Bernardino National Forest, Calif.
In this July 13, 2015, file photo, a pipeline carries water drawn from wells in the San Bernardino National Forest, Calif. AP/The Desert Sun

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 Chico, Calif.-based 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 permissable.”

Championed by the late Sacramento congressman John Moss, and signed by a reluctant President Lyndon 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 well-related 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 nine-page decision. Together, the three judges upheld a trial judge’s earlier decision likewise rejecting AquAlliance’s FOIA challenge.

A non-profit 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 transfering 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.

“Whatever AquAlliance believes Congress might have meant,” Millett wrote, “Congress said geological and geophysical information ‘concerning wells,’ without any...adjectival limitation.”

Matt Kenna, an attorney in Durango, Colo. who represented AquAlliance, said Tuesday that “we’re obviously disappointed” with the ruling.

Michael Doyle: 202-383-6153, @MichaelDoyle10