From KARK (Alex Kienlen) today, covering a ruling issued by Judge Lee Rudofsky of the Eastern District of Arkansas in Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc.:
A federal judge issued a ruling on Wednesday denying a request by Entergy Arkansas’ lawyers to halt the use of documents released under the Freedom of Information Act (FOIA) to a Little Rock woman….
The Democrat-Gazette reported on Monday that the Entergy documents, including some labeled “confidential,” were released after Jessica Kivell filed her FOIA request with the Public Service Commission and shared them with the newspaper….
The filing sought that the defendants be immediately barred from using or disclosing the documents, arguing that such disclosure would cause irreparable harm by exposing Entergy Arkansas’ trade secrets.
There is no written opinion from Judge Rudofsky; but beyond the general First Amendment principles that bar temporary restraining orders on speech, the matter also appears to fall under Florida Star v. B.J.F. (1989).
Florida Star essentially holds (in a simplified way) that individuals have a First Amendment right to publish information that the government has disclosed, even if the government erred in its disclosure. The case involved printing the name of a rape victim that a police department had erroneously disclosed; although state law prohibited newspapers from publishing rape-victim names, the Court ruled that the newspaper possessed a First Amendment right to do so. Likewise, even if trade secret law might bar newspapers from publishing information they obtain indirectly (a point that remains uncertain), they retain the right to publish when the information comes from the Public Service Commission, even if the Commission erred in releasing it (again, not entirely clear).
Regrettably, the motion for a temporary restraining order is sealed, making it difficult to determine the plaintiff’s arguments. I hope the motion will be unsealed soon, however.
For more on the underlying dispute, see the Democrat-Gazette’s Monday article by Sydney Sasser:
Google will pay Entergy Arkansas $526 million to build Cypress Solar, about one-third of the $1.6 billion price tag of the solar and battery facility.
That plant—a 600-megawatt solar field and 350-megawatt battery solar facility—will feed the grid from which Google’s West Memphis data center will draw massive power.
Google will pay an additional $190 million to Entergy for transmission system upgrades needed to serve the project….
In an Oct. 2 news release, Entergy Arkansas said the West Memphis data center “will be bolstered by a new 600-megawatt solar project, backed by a 350-megawatt battery storage system that will be located in Jefferson County, Arkansas. Google will pay rates that cover the cost of this resource.”
As I understand it, one of the questions was whether Google had promised to cover all costs or just the $526M (or $526M+$190M). The KARK story quotes a Google spokesperson as saying that,
“Google is fully committed to covering 100% of the power and infrastructure costs for our West Memphis data center. While upfront payments total $526 million, our ongoing monthly rates over the 20-year agreement will completely fund our operational footprint. Entergy’s regulatory filings demonstrate that this project will actually lower overall system costs, providing more than $1.1 billion in net benefits to Arkansas residents.”
John T. Adams (James & Carter PLLC) represents defendants.
