Water agencies like to tout themselves as stewards of the environment. The East Bay Municipal Utility District is no exception. The Oakland-based agency brags about its eco-friendly programs, from water recycling to turning bio-waste into clean energy. But in reality, East Bay MUD most often views itself as a business whose primary mission is to take care of its best customers, i.e., its biggest water users. So it should come as no surprise that the agency has refused a request by this newspaper to reveal the identities of its largest water users and how much water they consume. Never mind that many of these residents and businesses have likely wasted huge amounts of water during the drought, while putting the agency on a path toward building a new dam on the scenic Mokelumne River. According to East Bay MUD, its customers' right to privacy is paramount.
The agency denied a similar request by the Oakland Tribune in the early 1990s during the last drought. The Tribune then sued under the California Public Records Act and won. An Alameda County judge ruled in 1991 that the public's right to know who was wasting water in a drought outweighed the water wasters' privacy rights. According to news reports from the time, the lawsuit revealed that the largest water users consumed a whopping 4,000 gallons of water a day and most of them lived in the Danville-Alamo area.
But then in 1997, the legislature amended the state records law, allowing certain agencies to restrict the release of such records. The move came in response to the murder of a woman whose assailant found her address in Department of Motor Vehicle records. The amendment states that public utilities such as East Bay MUD can keep the names and addresses of its customers private if they wish. But the amendment also states that public utilities are free to release such records if they determine that "the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure."
In this case, the Express is not asking for the names and addresses of all of East Bay MUD's 1.3 million customers, but only of the agency's 100 biggest water users by category, including single-family homes and multi-family residences. The paper believes the public has a right to know who is guzzling water in a drought, and is not interested in the agency's entire database. But in denying the request, East Bay MUD official Rischa Cole cited the murder case and indicated that the agency was concerned about the safety of its largest water users should their names become public. When asked whether the agency believed that environmentalists or dam opponents posed a threat to these users, Cole declined to answer.
When told of the agency's response, some environmentalists and opponents of the planned Mokelumne River dam said the idea that they would harm large water users was laughable. "That's kind of out there, isn't it?" said Pete Bell of the Foothill Conservancy, a nonprofit dedicated to protecting the Mokelumne in the Sierra Foothills. "Are we going to go protest in front of a large water user?" Bell added. "I seriously doubt it. I've got better and more productive things to do with my time."
So is East Bay MUD really worried about its customers' safety? Or is the agency more concerned about its bottom line? After all, the embarrassment that can come with public disclosure might convince some of the agency's best customers to change their ways. But that would result in East Bay MUD selling less water, and thus receiving less revenue.
Because East Bay MUD is refusing to answer questions about the issue, one can only speculate as to its true rationale. But financial concerns appear to be a driving force for the agency, because it also refused to disclose the names and addresses of its largest business and industrial water users. Why would East Bay MUD be concerned about the safety of these customers? Even agency board member Andy Katz, who represents Berkeley and North Oakland and opposes the new dam proposal, said he disagreed with the agency's position, pointing out that it's no secret which businesses use the most water. In 1991, it was Chevron's Richmond refinery, which was consuming about 12 million gallons of water a day. "There is already a general awareness of who these businesses are," Katz explained.
In fact, the agency's decision to not divulge the names of businesses and industrial users may be unlawful. Terry Francke, a well-known legal expert on state public records law, said the 1997 amendment to the records act strongly suggests that it was intended to protect the identities of people — not businesses. Francke noted that in several places, the amendment refers to "home address" or says that records may be released to "family members," but makes no such reference to companies or other organizations. "Under Proposition 59, the 2004 constitutional amendment, restrictions on access to government information are to be read narrowly," Francke said, "and the narrow reading of this section confines it to individuals, not corporate entities."
Francke also noted that the public records law allows East Bay MUD to release the records requested by the Express, even for individual people, if it chooses to do so.
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