Colorado Courts Order Disclosure of Data Centers’ Water Use

Court rulings in Denver and El Paso County this month rejected arguments from public utilities that water usage records for large data processing centers are confidential under the Colorado Open Records Act.

In separate decisions, judges ordered the Denver Water Board and the city of Colorado Springs to turn over records to Business Insider and its senior editor for investigations, Hannah Beckler.

“The results in both cases were absolutely clear from the outset,” said Steve Zansberg, the news organization’s attorney. “Like eight other public utilities in Colorado who freely provided the same records to Business Insider, nothing prohibited Denver Water or Colorado Springs Utilities from doing so.”

Colorado Springs Utilities and Denver Water each went to court last year after Beckler made CORA requests for “total water use” at several business addresses.

Both claimed the documents couldn’t be disclosed under a CORA exemption that protects the “personal financial information” of public utility users. “[W]ater consumption data is inexorably linked with each individual customer’s water bill,” a Colorado Springs city attorney wrote in a court filing. “The water usage of a specific customer or user of Utilities multiplied by the rate published in Utilities’ publicly available Tariff will reveal the total of that customer’s water bill.”

The utilities also claimed that disclosure of the water usage information “would do substantial injury to the public interest,” and they invoked a CORA provision that lets a government records custodians seek a judicial clarification if they are “unable to determine if disclosure of the public record was prohibited without a ruling by the court.”

Invoking that provision can shield a government from being liable for attorney fees in a CORA lawsuit.

But the judges didn’t buy that argument, nor did they agree that the records sought by Beckler are “personal financial information” of an individual customer.

“The price paid for the amount of water a utility user purchases is not personal financial information,” wrote El Paso County District Court Judge Amanda Philipps in a January 15 order. “It is simply the cost of water usage, not personal financial information.”

The CORA exemption that protects the personal financial information of public utility users also says the provision shouldn’t bar the disclosure of “aggregate or statistical information so classified as to prevent the identification, location, or habits of individuals.” Colorado Springs interpreted that to mean “publication of data that reveals the habits of individual past or present users of public utilities is not permitted.”

But Philipps disagreed. Looking at the “plain meaning of the words used,” she wrote, the legislature exempted from disclosure personal identifying information (such as name, address, telephone numbers and personal financial information) of past or present users, “but it did not repeat that formulation later in the same exception by stating ‘habits of past or present users.’” The legislature, she noted, “simply said, habits ‘of individuals.’”

In the Denver Water case, Denver District Court Judge Kandace Gerdes focused on a CORA provision that lets a court restrict access to records that might otherwise be available for public inspection if disclosure would “do substantial injury to the public interest.” She noted Zubeck v. El Paso County Retirement Plan, in which the Court of Appeals stated that “this catch-all exemption is to be used only in those extraordinary situations which the General Assembly could not have identified in advance.”

Denver Water “has not demonstrated that this is an extraordinary situation,” Gerdes wrote in her January 15 order. The utility, she added, “did not carry its burden to show harm to the agency or a substantial injury to the public interest in disclosing the consumption of water by the addresses requested in the CORA requests.”

Both judges awarded attorney fees to Business Insider, even though Denver Water and Colorado Springs Utilities each cited the CORA provision that shields government entities from mandated attorney fees if a records custodian can establish that they “in good faith, after exercising reasonable diligence, and after making reasonable inquiry” were unable to determine if disclosure of a record is prohibited without a court ruling.

Gerdes wrote that she “did not receive evidence as to the custodian’s reasonable diligence and inquiry in good faith, to determine if the disclosure was prohibited prior to seeking judicial intervention.”

Philipps found that Colorado Springs Utilities had not “demonstrated that it made some sort of reasonable inquiry to determine if disclosure of the requested public records was prohibited and had determined that they needed further Court help to make that determination.”

Zansberg, who is president of the Colorado Freedom of Information Coalition, wrote in an email that he hopes “word gets out that this frequent ploy — of running into court when a denial has been challenged and claiming, falsely, the custodian is suddenly unable to determine whether disclosure is prohibited — does not succeed in avoiding a judgment for attorneys’ fees. Indeed, this cynical maneuver only increases the financial exposure for the public agency rather than having the courage to simply defend its legal position before a judge.”

Business Insider and other news organizations have done many articles on artificial intelligence data centers’ use of water, energy and other resources. The Denver Post in October reported on a proposed data center in north Denver that could “use a maximum of approximately 805,000 gallons of water a day to cool its systems, the same as 16,100 Denverites’ average daily indoor water use.”