One day after Central Arkansas Water threatened to sue Exxon Mobil over issues involving a crude-oil pipeline running through the Lake Maumelle watershed, the utility and the oil giant quietly reached a confidentiality agreement aimed at allowing the utility access to pipeline-related documents, a utility official said Tuesday.
The utility, which provides drinking water to about 400,000 central Arkansans, had been asking for the documents since April because of safety concerns prompted by a March 29 rupture in the Pegasus pipeline in nearby Mayflower.
Exxon Mobil’s reluctance to share safety information with the utility was among the complaints cited in a letter notifying the company that the utility planned to sue in 60 days if appropriate action wasn’t taken.
The utility mailed that letter late Thursday and Exxon Mobil received it Friday morning, said John Tynan, the utility’s watershed-protection manager. Tynan said Tuesday that a confidentiality agreement, signed Aug. 23 by utility Chief Executive Officer Graham Rich but not signed until Friday by Exxon Mobil Pipeline Co. President Gary Pruessing, arrived in the mail Friday afternoon.
Central Arkansas Water is a public agency subject to the Arkansas Freedom of Information Act. The agreement raises questions about whether the utility can legally enforce the agreement and whether at least one of its provisions was intended to circumvent that law.
“Confidentiality agreements have no bearing on FOIA [the Freedom of Information Act],” said Robert Steinbuch, a professor at the University of Arkansas at Little Rock Bowen School of Law. “FOIA trumps confidentiality agreements.”
The law does provide some disclosure exemptions, including records containing information relating to security for public water systems and matters that, if publicized, would yield a competitive advantage to another party.
Tynan called the three page pact “a short-term agreement” aimed ultimately at helping the utility keep a safe drinking-water supply.
“We reluctantly agreed to this in order to get access to the data,” Tynan said. “We’re still going to push for disclosure” to the public.
Tynan said the utility will not keep any “hard copies,” or printouts, of the Exxon Mobil documents and instead will view such documents on a website at a third party’s location.
The agreement, however, allows for the possibility of hard copies going to the utility when it says:
“The term ‘Confidential Information’ shall mean any so designated and marked data, reports, investigative findings or other analyses (whether preliminary or final and whether prepared by EMPCo [Exxon Mobil Pipeline Co.] or third parties at the request of EMPCo) concerning and/or associated with the Pegasus Pipeline and/or the cause(s) of the March 2013 Incident, made available by EMPCo to CAW pursuant to this Agreement in hard copy and/or in a virtual data room hosted by a third party….”
Tynan said the utility did not know when its officials would get to view the first documents.
“They’re working to prepare that website,” he said. “It’s unclear as to when it will be ready.”
He said he did not know where it would be based.
Tynan said the utility was not trying to circumvent the public-records law.
“We will take notes” from the viewings, he said. “Notes and summaries and work products that result from that [viewing] will be available to anyone who requests them as long” as security information is not included. “We certainly believe there are some security issues.”
But the agreement seems to restrict even the information viewed in the virtual data room. It says: “Where Confidential Information is produced in a non-paper medium, the Confidential Information notation … shall be placed on the medium and its container. All documents made available in a secure virtual data room are designated as Confidential Information regardless of any labeling.”
As for how decisions would be made on what constitutes competitive, or proprietary, information, Tynan said, “That’s not our call to make.”
But when asked what would prevent Exxon Mobil from saying the vast majority of the information should be exempted for competitive reasons, he said, “I guess in theory they could claim that a significant amount of it is proprietary” information. “There would have to be an ongoing dialogue and explanation as to why something is proprietary and why it would be exempt from disclosure.”
Steinbuch said the responsibility for determining what’s exempt is the utility’s, not Exxon Mobil’s. “Relying on third-party information” could be a problem, he said.
It’s one thing to seek Exxon Mobil’s advice, but another to let the oil company make the call on what Central Arkansas Water should release under the law, Steinbuch said. The utility “needs to make an analysis” itself in that regard, he said.
The agreement also provides that if the utility gets a request under the public-records act for confidential documents, the utility first must notify the company.
“Upon receipt of such notice by email, EMPCo shall notify CAW within two business days whether, and if so why, it believes the request documents are exempt from disclosure under the applicable FOIA laws,” the pact says.
Yet Steinbuch noted that state law says responses to such requests are to be immediate except in cases where the documents are in use or in storage. In only those cases, an agency has up to three days to release the material, he added.
“So, technically, if there’s a document that neither is in use nor in storage, compliance with that provision would mean they [ utility officials] were violating” the Freedom of Information Act, Steinbuch said.
Steinbuch said the utility’s decision not to keep copies of Exxon Mobil documents isn’t illegal because the law requires only the disclosure of documents in an agency’s possession. But he said, “On the other hand, if a government entity intentionally doesn’t write down, for example, budget figures because it’s trying to avoid disclosing its budgetary efforts, that I believe is contrary to what those who wrote the FOIA had in mind.”
Emails exchanged between Exxon Mobil and Central Arkansas Water and obtained recently by the Arkansas Democrat-Gazette reflect concerns about the public-records act.
In a July 26 email to Tynan, Nicolas Medina, the pipeline company’s public and government-affairs manager, wrote that, after reviewing the utility’s proposed changes to a confidentiality agreement, Exxon Mobil had “significant concerns as to CAW’s intent and ability to maintain confidentiality” of materials the oil company might share.
“From the beginning, CAW has represented that materials produced to it by EMPCo were not FOIA-able,” Medina wrote.
“We were, therefore, led to the assumption that it was feasible to establish a mechanism to share pipeline integrity data pertaining to the Maumelle watershed under a process that safeguards proprietary and confidential information. The proposed modifications call into question that approach.
“Please confirm if CAW is FOIA-able or not. If CAW is FOIA-able, then together we will need to explore other alternatives for your review of the materials, short of allowing CAW to maintain possession of the materials,” Medina added.
In a July 30 reply to Medina, Tynan noted that state law has a “competitive advantage” exemption and also exempts certain documents involving a public water system.
Tynan said, “It may be” that certain pipeline test results could fall into “one or both of these exemptions.”
He also suggested an alternative.
“Our attorneys have suggested that another way to resolve this situation would be for ExxonMobil to have PHMSA [the federal Pipeline and Hazardous Materials Safety Administration] to provide” such test information to the utility, he wrote.
“When submitting this information, PHMSA could require CAW not to disclose the information because the report is exempt from disclosure under the federal FOIA. There is an Arkansas Attorney General’s opinion stating that a document so provided need not be disclosed under the Arkansas FOIA.”
One report to which Tynan alluded has already been posted on the federal agency’s website for the public to view.
Tynan also told Medina that “CAW cannot and will not enter into a blanket confidentiality agreement for documents which are not exempt from disclosure” under state law.
Information for this article was contributed by Sean Beherec of the Arkansas Democrat-Gazette.
Front Section, Pages 1 on 09/25/2013