Google is fighting me in court.

This requires a bit of backstory.

For months, local governments refused to disclose how much water a potential Google data center in Botetourt County might use. 

The Western Virginia Water Authority redacted those estimates in contracts released to The Roanoke Rambler. The agency cited a section of the Virginia Freedom of Information Act that allows government agencies to withhold “proprietary information” under certain circumstances. 

I did not believe that exemption applied. So I decided to sue. 

As The Rambler’s founder, I took the water authority to court last month to argue that, despite Google’s claim, water use is not proprietary and should be made publicly available. 

The judge agreed.

Roanoke Circuit Court Judge Leisa Ciaffone in a Nov. 5 written ruling ordered the water authority to release full copies of two contracts associated with the potential project.

“The water usage information being sought is not a right, much less a right associated with ownership or possession,” Ciaffone wrote. “It is not a thing that is possessed. It is not information that is owned by Google. It is not an item that is made or marketed. Considering the plain meaning of the word, the court finds that WVWA has not established that the water usage information is proprietary information.”

On Monday, however, the water authority’s attorney, Jeremy Carroll, indicated it plans to appeal Ciaffone’s ruling to the Virginia Court of Appeals. That’s because Google strongly believes the redacted information is proprietary, according to Carroll.

Nationwide, data center operators including Google have tried to keep secret the amount of water projects could use. In Virginia, Ciaffone’s ruling appears to be the first time that a court has weighed in on whether such information can rightfully be withheld under the state’s Freedom of Information Act, according to a review of case law. But hers may not be the final word.

What’s the issue?

In June, Botetourt County leaders announced that Google had purchased 312 acres of land in an industrial park for a potential data center project.

The tech giant promised to spend at least $1 billion per data center, and county officials celebrated the potential tax windfall and new jobs. Economic development leaders had spent 18 months courting Google. They predicted such a large-scale data center — a first for Southwest Virginia — would help spur more investments from the digital economy, including in artificial intelligence.

But many aspects of the potential project remained shrouded in secrecy — including how many data centers are under consideration and how much energy and water they would use.

Officials have said the water will initially come from Carvins Cove. Governments have earmarked up to $300 million for a new water source that they say Google will pay for. 

Why did we sue?

In July, a draft agreement between Botetourt and the water authority leaked out. 

Data centers use massive amounts of water to cool their computing equipment. According to the draft agreement, as reported by Cardinal News, the water authority planned to provide 2 million gallons of water per day, increasing to 8 million gallons per day based on possible future expansions.

As conceived, such a data center would use between seven and 30 times as much water as the authority’s current top customer, the Coca-Cola bottling plant.

But officially, governments wouldn’t confirm those figures. Botetourt, the water authority and Roanoke all redacted water usage numbers when releasing records under the Virginia Freedom of Information Act. Each cited a code section that allows them to withhold “proprietary information.” 

I did not think that was a proper interpretation of the law. 

In Virginia, anyone who thinks they have been denied their rights under the Freedom of Information Act can file what’s called a “writ of mandamus” in court. I wrote up an account of what happened, The Rambler paid $86 in filing fees, and the clerk’s office scheduled a hearing for Oct. 16.  

What happened in court?

I stood at one end of the courtroom. On the other side, the water authority was represented by its executive director, Mike McEvoy, with Carroll as counsel. 

The hearing lasted about an hour.

I argued that the amount of water a data center might use is not proprietary information, despite Google’s contention. I invoked a 2014 Virginia Supreme Court ruling that relied on a definition of “proprietary right” as “an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls."

“The private business does not own this information,” I said, referring to Google. “It is an estimate for an amount of public utility, in this case, water, that the government expects to make available to a given site.”

McEvoy testified that Google representatives considered the information proprietary. He said a person could infer how much energy a data center would use, and how its computing worked, based on that information. 

The water authority submitted an affidavit from Aaron McGarry, a senior director at Google, who asserted that water use numbers “could be used to infer the size and design of the Project and its planned expansions” and that such information could give competitors an edge in the data center arms race. 

I countered that Google itself, in annual sustainability reports, publishes how much water each of its data centers use around the world. 

What did the judge say?

Ciaffone determined that the water authority did not prove “by a preponderance of the evidence” that it had applied the public records law correctly.

“There are few resources more precious than water,” Ciaffone wrote. 

She said the public has “an overwhelming interest” in how government officials manage water, especially at the beginning stages of the potential data center development.

“Public participation in the data center discussion on a local level is especially critical, given that this is an industry still in its adolescence, with virtually no state-wide regulations.” 

In court, McEvoy had testified that if Google became a water authority customer, the agency would publicly report actual water usage, in keeping with a state law that requires such disclosure.

Ciaffone indicated in her ruling that that was inadequate.

“For the public to be given information on water usage when the ink is dry on the deal is useless,” she wrote.

At one point in court, Carroll suggested I was making a policy argument about the wisdom of a data center development. Ciaffone determined — as was my intent — that people should know what their government is doing, regardless of views.

“There is no question that a data center in Botetourt County will provide an economic benefit to the community, and well beyond,” Ciaffone said. “However, the citizens who want to examine all aspects of the proposal before the project is finalized seek to participate exactly as FOIA envisions.”

What comes next?

Megan Ryhne, executive director of the Virginia Coalition for Open Government, hailed Ciaffone’s ruling as a win for government transparency.

“Businesses can call anything ‘proprietary,’ but it’s the government that answers to the public,” Rhyne told me in an email. “It should be up to the government, not the business, to decide what its residents are allowed to see.”

Instead, the water authority appears ready to fight release of the records.

Ciaffone gave the parties 14 days for a formal response, which ends Nov. 19. Initially, the water authority indicated it would let the ruling stand but then suggested that because Google believed the information proprietary that the water authority might appeal. 

It could take a year for a case before the Virginia Court of Appeals to resolve. The Rambler has engaged a Richmond-based law firm to handle any potential appeal.