Water Works asks to seal certain court records
PERRY BEEMAN Aug 25, 2015 | 6:36 pm
3 min read time
695 wordsAll Latest News, Business Record Insider, Energy
A federal judge has agreed to allow parties involved in the Des Moines Water Works nitrate lawsuit to keep materials from public view if they “contain confidential, sensitive, or proprietary information.”
The order, issued Aug. 21 at the request of Des Moines Water Works, also notes that “information of a character that may give rise to annoyance, embarrassment or oppression has been or may be requested.” The court noted that some requests may be “claimed to be outside the scope of discovery,” too.
“We are not interested in playing into their propaganda efforts on TV,” said Bill Stowe, Des Moines Water Works CEO and general manager, referring to advertisements bought by agricultural interests that criticize the utility’s lawsuit. That could happen if the counties requested information that is private or subject to attorney-client privilege, Stowe added.
Des Moines Water Works filed a lawsuit in U.S. District Court in Sioux City against Sac, Calhoun and Buena Vista counties, which operate drainage districts the utility says should be subject to permit requirements under the federal Clean Water Act. The counties and various agricultural interests dispute that and also contend that voluntary conservation efforts will be far more effective at reducing nitrate pollution.
The counties did not resist the order setting out a system for keeping information secret from those not involved directly in the case.
Nitrate in drinking water can suffocate babies by robbing the blood’s ability to carry oxygen. It also has been linked to several other illnesses, including cancer. Federal environmental regulations require water utilities to keep nitrate at safe levels in tap water.
The trial is set for Aug. 8, 2016.
Water Works sued after years of warning about record nitrate levels in the Raccoon River. The pollution has caused the utility to run a nitrate-removal plant that will need to be replaced in coming years. The utility has estimated that the the new plant could cost as much as $180 million, but consulting engineering firm CH2M Hill is working on a detailed analysis and cost estimate. Results are expected early next year, Stowe said.
Last week’s action is called a protective order. That technique is fairly common in cases in which trade secrets are involved.
This case is unusual in that it involves one public entity subject to the open records law suing three other public entities that also must follow those regulations.
“This is a protective action,” Stowe said. “We are not going to get caught in a whirlpool of harassing requests.”
Lawyers at Belin McCormick law firm, which is representing the counties, declined to comment.
Kathleen Richardson, dean of the Drake University School of Journalism and Mass Communication and a longtime authority on the state’s open records law, said the action draws attention to an already controversial case.
“It does raise eyebrows because both parties are governmental entities, and records in their possession are public records unless they fall under an exemption” to the state open records law, Richardson said.
“This shows the level of discourse or the high passions that are running in this case,” she added.
Stowe said Water Works has no intention of hiding public records, and in fact has turned over 20 million pages of water quality data in response to what he called “sweeping” discovery requests from the counties’ lawyers. His goal, he said, is to avoid requests he considers out of bounds.
“We do not want to encourage a diversionary battle on free-market beliefs and laissez-faire agriculture,” Stowe said.
He declined to comment on whether the lawyers for the three counties already had asked for material he considered “confidential, sensitive or proprietary” or had already caused Water Works “annoyance, embarrassment or oppression.” Discovery began in the spring and continues.
Stowe said he wants to guard against requests for his personal emails or personal phone records, or information on his conversations about motives or opinions about the Clean Water Act. “If they asked for my personal smartphone records, they might as well tap my home phone,” Stowe said.
He added that the order would protect trade secrets, should, for example, someone come up with a proprietary way of reducing nitrate pollution.
Trending News
