Deschutes County District Attorney John Hummel has ordered a Bend-based private water company that contracts with the city to turn over customer records to a local journalist.

Avion Water Co. is appealing Hummel’s decision, and a Deschutes County Circuit judge will soon review the claim by a freelance reporter for The Source Weekly that Avion is the functional equivalent of a public body and thus subject to Oregon public records law.

On May 16, Bend-based freelance journalist Hanna Merzbach emailed Avion requesting the names and addresses of the company’s top 15 residential water customers and the amount of water they consumed in 2021.

“I am requesting a small amount of documents, which should not take up too much of the company’s resources to obtain,” Merzbach wrote to Avion officials in an email included in the court record.

Avion declined to provide the information, writing to Merzbach that the company is neither a public body nor the “functional equivalent” of one, a term that under Oregon law would open the company to disclosure rules.

In Oregon, a denial of a public records request may be appealed to the local district attorney, which Merzbach promptly did.

For his review, Hummel asked both sides to send supporting documents.

Kyle D. Wuepper, attorney for Avion, cited the Oregon Supreme Court case considered to be precedent in the matter, Marks vs. McKinley High School Fact Finding Team.

“Avion is an independent, private utility, created and funded by private entities, managed and operated by private individuals, without direct government control, and which performs no governmental decision-making function and possesses no authority over state government,” Wuepper wrote.

On May 26, Hummel issued his decision siding, narrowly, he wrote, with The Source.

“I find that for the purposes of The Source Weekly’s public records request in this matter, Avion is the functional equivalent of a public body,” Hummel wrote.

The DA reasoned that as a franchisee of the city, Avion receives “significant” nonmonetary support from the government. This support includes the right to operate and build facilities on city right-of-way, and an exclusive right to serve customers in Avion’s service area.

Beyond that, Hummel wrote, water is a utility service traditionally associated with government, evidenced by the fact 80% of U.S. water customers get their water from the government.

Avion was created in 1968 to serve customers in a subdivision in southeast Bend. Today, it provides untreated drinking water to around 14,000 customers in Deschutes and Crook counties, according to its website. A number of those customers live within Bend city limits and that service is controlled by a contract between Avion and the city.

The company is also regulated by the Oregon Public Utilities Commission, meaning the PUC — and not Avion — determines rates and terms of service on behalf of customers. This arrangement is far from standard; only a small portion of the state’s 3,500 private water companies are regulated by the PUC, according to commission spokeswoman Kandi Young.

The reason for PUC oversight is because Avion has a monopoly in its service area, Young said. Years ago, the company sought and received status to operate an “exclusive service territory” under Oregon law. The flipside of that deal is that Avion has a legal obligation to serve all customers in the territory in a nondiscriminatory manner.

The PUC does not keep customer records, so a journalist seeking information about Avion’s water customers would be directed to contact the company, Young said.

Since 2001, Portland’s Willamette Week newspaper has run a regular feature titled, “Hydro Hogs,” cataloging the city’s residential customers who use the most water. Information for the 2021 list was collected from the Portland Water Bureau and a water district serving wealthy Portlanders.

With ample water available from the Bull Run Reservoir, Portland has not experienced drought in decades. That’s not the case in Central Oregon, where years of drought have heightened wildfire risk and hampered recreation and agriculture. Climate scientists have determined the American West and Northern Mexico are experiencing the driest period in the past 1,200 years.

Merzbach declined to comment for this article. In a statement, Source Editor Nicole Vulcan said the records request was an important one.

“As a high desert community entrenched in an unprecedented drought, we believe issues around water usage and who ‘owns’ the region’s water are of utmost interest to our readers,” Vulcan wrote. “We believe DA Hummel was correct in his decision ordering Avion Water to release the requested records to the Source Weekly, and we look forward to seeing how this case plays out.”

Avion is the largest of four private utility companies that contract with the city, according to Dana Wilson, city of Bend utility business manager.

The Source also requested information about the top 15 water customers from the city governments of Bend and Redmond.

Wilson said Bend has that information readily available and given the city’s modern record-keeping practices, she was able to fulfill The Source’s records request in a timely manner.

“It’s pretty easy,” she said. “As the city of Bend, we’re bound by public records laws, so we have to provide that information.”