As of today, with Governor Brown’s emergency water consumption restrictions, the Legislature can no longer justify a law that keeps secret how much water is used by whom.
In 1997, the Legislature quietly passed, with no opposition, an amendment to the California Public Records Act making secret the information held by local public utility districts showing how much water or energy is being used by customers, both residential and commercial. SB 448, sponsored by the City of Palo Alto, was initially explained as a means of protecting the privacy of individuals—specifically their contact information such as home addresses and phone numbers contained in utility billing records. Such specifics on the public record could be used by criminals to track their targets to their homes, as in the case of Rebecca Schaeffer, who was murdered by a stalker in 1989 using then open DMV information, said Sher.
But by the time the bill reached final approval, a second rationale was offered by the League of California Cities, representing municipal utility districts. As remarked in a committee consultant’s analysis of SB 448, the League’s industrial “parity” argument noted that
investor-owned utility companies (e.g., Pacific Gas and Electric, Southern California Edison) are not subject to the disclosure requirements of the Public Records Act. Consequently, investor-owned utilities are able to carefully protect the confidentiality of proprietary business and customer information. In order to remain viable and competitive, therefore, municipal utilities must be able to offer the same degree of confidentiality protection as investor-owned utilities, the League argues.
In other words, protection for business interests as well as for personal privacy dictated that utility customers’ water and energy consumption, documented in local government records, be kept secret, with some narrow exceptions: if the customer is violating local rationing or other use limit policy; if the customer is an official who has a role in setting that policy; or if the agency otherwise decides somehow that disclosure is in the public interest. Government Code Section 6254.16 in the Public Records Act states:
Nothing in this chapter shall be construed to require the disclosure of the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request as follows:
(a) To an agent or authorized family member of the person to whom the information pertains.
(b) To an officer or employee of another governmental agency when necessary for the performance of its official duties.
(c) Upon court order or the request of a law enforcement agency relative to an ongoing investigation.
(d) Upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies.
(e) Upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without his or her consent.
(f) Upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure.
The argument for exposure of rationing violators was already persuasive in 1990, as noted by the California Court of Appeal in New York Times Co. v. Superior Court (Goleta Water District), 218 Cal.App.3d 1579,1586 (2d Dist. 1990), a case that dealt with a newspaper’s request for the names of residents and businesses that had exceeded rationing limits in a recent month’s use of water supplied by a local agency.
The preservation of water resources has long been a matter of great concern in California. . . It is the policy of the state to foster the beneficial use of water and discourage waste. . . The rapid population growth in certain portions of Southern California has exceeded available water resources in the region. Recent years have witnessed a severe drought and water resources in Goleta have thereby been further reduced.
The District asserts that the overdrafting of one's water allocation for a month's period does not necessarily demonstrate noncompliance on the part of the customers. Nonetheless, publication of overdrafting by customers during a given period will discourage profligate use of water during the ensuing months and encourage customers to bring their consumption within the guidelines of the ordinance.
The District's fear that outraged citizens will misunderstand the information sought is speculative and does not outweigh the public's right to be informed of the District's implementation of the ordinance.
But in a drought far more critical 25 years later, exposing only rationing violators is simply not enough. For one thing, local water districts that did not impose rationing in compliance with the Governor’s policy, or were slow to do so, could keep customer usage secret despite the court's conclusions, since no use restrictions would have been violated. For another, the public is unlikely to get the needed grip on the dimensions of the drought without knowing which residents, businesses, farms and even public agencies are using how much water.
Customers’ home addresses and credit information can still be kept confidential in keeping with the original personal privacy concerns of SB 448. But the names of those using what amount of water for domestic, commercial, industrial, agricultural and even governmental purposes need to be on the public record if California is to become fully aware of what needs to be done to meet the crisis.