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Arizona Declares Metadata Is Fair Game for Open Records Requests

By Elenore Cotter Klingler, Litigation News Associate Editor – December 29, 2009

Metadata associated with electronic records is subject to disclosure in public records requests, says the Arizona State Supreme Court in its recent decision, Lake v. City of Phoenix [PDF].


The state’s highest court overturned a decision of the state court of appeals, which earlier had found metadata to be a separate, unintentionally created document that was not part of the public record. That analysis was incorrect, the supreme court held in a unanimous decision. Metadata is an inherent part of any electronic document and thus discoverable as a part of a records request, it says.


In 2006, former city police officer David Lake made a series of public records requests to the City of Phoenix for his performance reviews.


The records were produced, but Lake contended that dates in the records had been changed prior to their release. The city refused to release the metadata, which could potentially reveal revision dates. Lake filed suit, alleging violations of the Arizona public records laws.


Earlier this year, the Arizona Court of Appeals denied Lake’s request [PDF], finding that metadata was neither an inherent part of an electronic document nor a requestable record under Arizona law. The dissent took issue with the court’s analysis, arguing that metadata was “not an electronic orphan” [at 35 (Norris, J. dissenting)], but an inherent part of any electronic document.


Nine months later, the Arizona Supreme Court decided unanimously that the court of appeals had gotten it wrong—metadata is part of the public record.


“If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under [Arizona’s] public records laws,” the Lake opinion says.


The supreme court declined to adopt the court of appeals’ analysis of Arizona public records law and instead embraced the dissent’s assertion that metadata should not be separated from its source when deciding whether it is discoverable.


“The pertinent issue is not whether metadata considered alone is a public record. Instead, the question is whether a ‘public record’ maintained in an electronic format includes not only the information normally visible upon printing the document but also any embedded metadata,” the Lake opinion says.


The court dismissed the city’s concern that producing metadata would be an “administrative nightmare.” Any difficulty identifying metadata, the court declared, could be assuaged “merely by providing the requestor with a copy of the record in its native format,” the court opines.


The Lake case has been closely watched by freedom of information advocates as a test for how public records laws would stand up to the new world of electronic records requests. “It came out better this time,” says Richard M. Goehler, Cincinnati, former chair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee.


“I think that the strength of the supreme court’s decision is the clarity in which they described the issue,” he says.


The key importance of the case is that the state supreme court found the metadata to be part of the record, rendering unnecessary the court of appeal’s technical analysis of whether metadata fits Arizona’s definition of a public record on its own, Goehler opines.


“I think it’s revolutionary. To have it come down in favor of openness is terribly exciting,” says Charles Davis, Executive Director of the National Freedom of Information Coalition at the University of Missouri School of Journalism.


Davis, who initially expressed some concern about the potential snowballing of metadata requests, after further consideration thinks that metadata is unlikely to be relevant to most records requests, and city concerns on that issue were “an overwrought argument.”


The next major issue in this area of law is likely to be the retention of electronic records and their attendant metadata, both Davis and Goehler agree.


The Lake court declined to address whether the city was required to maintain documents electronically under retention policies. “That a public record currently exists in an electronic format, and is subject to disclosure in that format, does not itself determine whether there is a statutory obligation to preserve it electronically,” the Lake opinion says.


Because public records requests are controlled by statute, legislatures could decide to create statutory exemptions for certain records, Goehler notes.


Davis agrees. “A whole lot of politicians are going to look at a whole lot of retention schedules for the first time in their lives,” he says.


Goehler believes, however, that the impracticality of storing thousands of records in paper form will force most governments to continue storing documents electronically.


Both Davis and Goehler believe that the Lake decision is a seminal case in public records law. “To the extent that this issue comes up down the road, this will be a decision that will be cited to pretty regularly,” Goehler predicts.


A Washington State case on metadata and the public record, O'Neill v. Shoreline, will be heard by that state’s supreme court in March. Plaintiff Beth O’Neill seeks the metadata behind an email made public by the deputy mayor. The intermediary appellate court partially approved her request but made distinctions among types of metadata based on their relationships to public actions. O'Neill’s attorney, Michele Earl-Hubbard, Seattle, says she hopes the Lake opinion will give the Washington Supreme Court “comfort that the one and only state supreme court decision on the issue has agreed with the plaintiff,” despite Arizona’s weaker definition of what constitutes a public record.


As far as the Lake case is concerned, attorney Caroline Pilch says her client intends to pursue his request for the missing metadata. As of mid-November, the City of Phoenix says it is searching for the records but does not know whether they have been retained. “Stay tuned,” Pilch says. “It’s about to get interesting.”


The same could be said for the status of public metadata.


Keywords: Lake v. City of Phoenix, Arizona Supreme Court, metadata, public record


 

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