No TRO Against Arkansas Democrat-Gazette as to Publishing of Data Center Plans

From KARK (Alex Kienlen) today, reporting on a decision by Judge Lee Rudofsky (E.D. Ark.) in Entergy Arkansas LLC v. Arkansas Democrat-Gazette Inc.:

A federal judge issued a decision on Wednesday denying a request by lawyers for Entergy Arkansas to stop 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 marked “confidential,” were released after Jessica Kivell filed her FOIA request with the Public Service Commission and shared them with the newspaper….

The filing asked that the defendants be immediately prohibited from using or disclosing the documents, since it would do “irreparable harm” by disclosing Entergy Arkansas’ trade secrets.

There is no written opinion from Judge Rudofsky; but besides the general First Amendment rules against temporary restraining orders barring speech, the matter also seems to me to be governed by Florida Star v. B.J.F. (1989).

Florida Star basically says (to oversimplify slightly) that people have a First Amendment right to publish information that was disclosed by the government, even if the government erred in disclosing it. That case involved publishing the name of a rape victim that was erroneously disclosed by a police department; even though state law barred newspapers from publishing rape victims’ names, the Court held that the newspaper had a First Amendment right to do so. Likewise, even if trade secret law bars newspapers from publishing information that they indirectly obtain (and I’m not sure that it does), they have the right to do so when it is obtained from the Public Service Commission, even if the Commission erred in disclosing it (again, far from clear).

Unfortunately, the motion for a temporary restraining order is sealed, so it’s hard to be sure of the arguments plaintiff made. I hope the motion will be unsealed at some point soon, though.

For more on the underlying controversy, see the Monday story in the Democrat-Gazette (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 pay for all the 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.