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Metadata Uncertainty Extends to Public Records Law

By Elenore Cotter Klingler, Litigation News Associate Editor – April 16, 2009

A recent Arizona state court of appeals decision adds another layer of complexity to the already ambiguous field of metadata retention. Lake v. City of Phoenix [PDF ], held by a two-to- one majority, that metadata is not a public record under Arizona law and therefore not subject to disclosure under a freedom of information request. Litigators have become accustomed to wrangling with disclose-it-or-not questions of metadata discovery, but it is a relatively new issue for public records requests, according to the Lake court.

Background of Lake
The issues in this case arose when David Lake, a police officer for the city of Phoenix, made a series of public records requests in 2006 in connection with his claim that he was wrongfully terminated from his job. Lake believed the city had backdated some of the documents it produced in response to his request, according to his attorney, Caroline A. Pilch, Phoenix.

Lake filed suit, alleging that the city failed to comply with Arizona’s freedom of information law when it did not produce metadata that would show the dates and times of changes to the produced records. The city contended that the metadata was not a public record under Arizona law and not subject to production.

The court considered Lake’s request within the context of Arizona’s public record laws, which generally consider public records to be those which are made by officials in “pursuance of a duty,” “required by law to be maintained,” or are “records of official transactions.”

Majority Decision
The majority quickly dismissed the first two prongs on the grounds that metadata is not created intentionally by the user, but is only a “by-product of his use of a computer.” The court found that a public official’s obligation was no greater than “memorializing his notes, whether by computer or other medium.”

In the court’s view, including the metadata was beyond the scope of that duty. “He was not legally obligated to make a record of the filename, to record the name of the computer on which the document was created, to identify the server he may have accessed, to note when the file was accessed or modified, or to identify when it was printed,” the Lake opinion says.

The third prong of Arizona’s public records disclosure test was a closer question for the court. The majority acknowledged that the metadata is, in fact, a record of an official transaction. However, it also reasoned that the transaction is the creation of the record itself, not the creation of the metadata underlying it. The majority thus found that the metadata is not a public record required to be disclosed.

The Lake opinion also emphasized the potential time and expense involved in producing metadata. “[W]e must also recognize the practical reality that each time a government employee logs on or off of a computer, clicks a computer mouse, pushes the characters on a keyboard, sends an e-mail, prints a document, uses the internet, talks on a phone, or enters a building with keycard access, a ‘record’ has arguably been generated,” the court said.

The dissent in Lake took a different approach, finding metadata to be an inherent part of any electronic document. When an electronic public record is requested, the entire record should be produced, including the metadata embedded within, the dissent reasoned.

“[M]etadata does not stand alone. It is not an electronic orphan. It has a home; it exists as part of an electronic document. When, as here, that electronically created document is a public record, then so too is its metadata,” says Arizona Court of Appeals Judge Patricia K. Norris in dissent.

Metadata and Discovery
While the Lake case breaks new ground in the public records context, discovery complications involving metadata are nothing new for litigators. If metadata is not specifically requested in discovery, a party must have more than a mere suspicion of wrongdoing in records production to permit the examination of the metadata behind it, says Ronni Dawn Solomon, Atlanta, GA, cochair of the Section of Litigation Pretrial Practice and Discovery Committee’s Electronic Discovery Subcommittee.

Public Records Requests
Suspicion of wrongdoing is what drives many public records requests in the first place. Even so, Charles Davis, executive director of the National Freedom of Information Coalition at the University of Missouri School of Journalism, hesitates to open the door wholesale to metadata requests. “When you start down this road, where do you stop?” he asks.

The difficulty in public records requests is that “states don’t have the ability to negotiate these requests,” and penalties for noncompliance can be steep, says Gregory Shelton, Seattle, cochair of the Section’s Technology for the Litigator Committee.

The underlying purpose of public records laws is to keep a history of government action, and metadata is another layer below that, the “recordkeeping of the historical record,” as Davis puts it.

Dick Goehler, Cincinnati, OH, former chair of the Section’s First Amendment and Media Litigation Committee, disagrees. “This case doesn’t strike me as a fishing expedition,” he says, noting that Lake’s metadata request was directly related to his concern that records had been altered by the government.

Goehler finds the majority opinion to be a “hypertechnical analysis to get to the result they wanted” and believes metadata to be inseparable from the parent document.

With each state deciding metadata cases based on local public records law, national consensus is unlikely to emerge soon. Goehler and Davis both suggest that an in camera examination by the court may be one way to balance the need to know versus the potentially high cost to produce. Shelton suggests that a uniform rule-making body consider creating model rules for the examination of metadata and electronic records requests.

A Look Ahead
While the Lake decision may not change the game for litigators, it does extend the complexity of metadata retention and requests into a new field. “As more municipalities move toward computerized records, this is going to be something they’ll be forced to deal with,” says Shelton.

Lake’s attorney, Pilch, says that they have already filed a petition to the Arizona Supreme Court and expect amicus briefs from freedom of information interest groups. Pilch anticipates hearing from the court by late summer.

Keywords: Electronic discovery, metadata, Lake v. City of Phoenix.


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