A day after the administrative court rejected the Mouvement Ecologique’s (Meco) request to make Google’s memorandum of understanding public, the group has pushed ahead with an appeal.

According to a 2018 law, to require full public disclosure the MoU would have to be considered an administrative document and the information contained within it must not be a trade secret, the publication of which would jeopardise a company's competitiveness.

According to the court, as it does not fall within the scope of a “public service mission”, the MoU is not an administrative document. And the information on the water consumption of Google's datacenter, contained in the file, could reveal the American tech giant's commercial strategy.

In justifying its appeal against the court's ruling, Meco says that “another interpretation of the file is quite possible” and even “necessary”. First of all, Meco says that the court itself recognised that the law of 14 September, 2018 did not provide a definition of the notion of “administrative document”. However, the association is surprised that the MoU and the activity of the state in the Google file are not considered as a “public service” by the court.

General interest versus commercial interest

Moreover, concerning the protection of commercial secrecy, Meco questions the damage that can be caused to Google by the disclosure of its water consumption: “What would a competitor, who knows the figure for water consumption do? […] The general interest takes precedence over commercial interests, especially when it is not at all clear that the disclosure of the information in question is actually a disadvantage for a company, but is nevertheless of great importance for the public debate.”

In addition to pursuing legal action, Meco is demanding a revision of the law, which it claims is unsatisfactory in its current state. “The government must put the dossier back on the agenda”, the association insists.

“The government cannot hide behind a court’s interpretation. It must openly explain, in the light of this judgment, whether or not this law continues a reflection of the spirit of this government,” Meco said.

It continued that it believes that “in a 21st century democracy, where it is more important than ever to fight against fake news and where responsible and enlightened citizens are needed, a transparent state is indispensable.”

10 months of arm wrestling

Meco had asked the economy ministry to consult the MoU as early as 3 February. The same request was made on the same day to the commune of Bissen, which was also asked for information on water consumption on the site. The local authority did not reply, while the minister indicated by e-mail on 4 March that he did not wish to forward the MoU, particularly because it contained confidential content.

The association then referred the matter to the Commission for Access to Documents on 27 March. The latter, on 4 May, judged that the MoU could be transmitted, if some personal data was deleted.

A month later, the ministry warned Meco that the government would not follow the Commission's advice. An appeal was then lodged with the administrative court. On 23 July , Google filed a request for voluntary intervention to have its arguments heard. These were, like those of the state, widely heard by the judges.

This article was originally published in French on Paperjam.lu