In 2022, journalist Hanna Merzbach began a story for the Source Weekly, attempting to uncover Central Oregon’s top residential water users in 2021. Merzbach requested records from Avion Water Company, one of the largest water utilities in Central Oregon, hoping to receive data about its water usage. Instead of providing the records, the company filed a lawsuit against the newspaper.
Shortly after Merzbach requested records from Avion Water, the company denied the request and decided not to provide the Source Weekly with its water usage data, arguing that it’s a private company and therefore, isn’t subject to Oregon public records law. The Source Weekly appealed Avion’s decision to Deschutes District Attorney John Hummel, arguing that water is public in Oregon and that Avion is the functional equivalent of a public body.
On May 26 of 2022, Hummel found that Avion Water was the “functional equivalent” of a public body, which under Oregon public records law, would require the company to release its water usage data. The water company again did not provide the records and instead sought relief against the Source Weekly in court. With litigation still ongoing, the Source Weekly has yet to see any records from the water company. The Source has, however, published subsequent water-use stories about municipal as well as private water use.
On Aug. 11, Avion Water, the plaintiff, filed a motion for summary judgment, asking the trial court to rule on the case. Trial Court Judge Beth Bagley decided to grant the plaintiff’s motion for summary judgment, declaring that Avion Water is “neither a ‘public body’ nor the equivalent of a public body under Oregon’s Public Records Law.”
The most recent decision prevents the Source Weekly from enforcing Hummel’s decision that would’ve required Avion Water to produce the requested records. The Source Weekly is currently facing a decision to appeal the Aug. 11 motion and has until Sept. 21 to do so.
If the granted motion is appealed, the case would move up to the Oregon Court of Appeals, giving a three-judge panel the ability to reverse or affirm the ruling.
“In this age where water is becoming more and more scarce, I think these are questions that are going to continue to come up and I don’t think it’s setting a very good precedent right now to be saying that private companies don’t have to be transparent about this,” Merzbach told the Source Weekly.
Merzbach’s report was published in the Source Weekly in August 2022 and showed a snapshot of Bend and Redmond’s water usage in 2021. In addition to Avion Water Company, Merzbach requested records from Bend Water and Redmond Water. Merzbach was able to receive records from both city-run facilities, giving her a sufficient amount of water usage data.
“Bend and Redmond were super cooperative and gave me those records pretty quickly after I asked for it,” said Merzbach. Still, the data was incomplete — omitting the over 15,000 customers in Deschutes and Crook Counties that Avion Water provides water for.
“We don’t know where 15% of our water is going in Bend, I think that’s a big problem,” said Merzbach.
Avion Water Company did not respond to our request for comment about the summary judgement by the time of publication.
This article appears in Source Weekly August 31, 2023.
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I’m so glad you’re pursuing this. It’s absolutely shady that they are refusing to share their records and we deserve the truth!
Thanks for continuing to pursue story – both from a free press and a water use/shortage perspective. We don’t get to choose who are water service providers are here so why isn’t Avion (and similar providers) a public utlility?
Water comes from a shared water table. Yet some providers, like the City of Bend, regulate and encourage water conservation while users of privately held companies are encouraged to use more water to make more money for the stockholders of the company.
Oregon water law, like many western states, needs to be changed to reflect the present and future, not the 1st come, 1st served basis of the past, focusing on conservation as well as allocation in times of shortages. And since the vast majority of water used in Central Oregon goes to agriculture more work needs to be done there.
We live in the high DESERT but in many neighborhoods you wouldn’t know it from the plant and lawn selections that require lots of water. Some communities in the west are already facing residential and commercial water shortages and building moratoriums- we need to change our laws before we get there.