Driving home from a restaurant last evening (October 29), I heard an item on the local news segment on National Public Radio that almost made me slam on the brakes. The Arizona Supreme Court had ruled earlier in the day that a governmental authority receiving a request for public records must produce the metadata as well as the native electronic files. This morning it was on the front page of section two of The Arizona Republic.
Five years ago no editor would have considered this newsworthy enough to warrant any air time or print space. The unanimous five-judge panel wasted little time in getting to the point. Here in the first paragraph, is the opinion in a nutshell:
“We today hold that 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 our public records laws.”
Click here for the full opinion.
It’s interesting for a number of reasons. A Phoenix police officer named David Lake was a plaintiff in a federal lawsuit alleging employment discrimination by the City of Phoenix. Because the defendant is a public entity, Lake made a formal public records request for his supervisor’s notes under state law — Arizona Revised Statutes § 39-121. It is not clear from the decision whether he did this in addition to, or in lieu of, serving a request for production in his federal action under Fed.R.Civ.P. 26(b). Among other points made by this case, it serves as a reminder that sometimes there’s more than one way to obtain discovery.
In response to his request, he received paper printouts. Already this sounds like one of those (rhymes with “hissing”) contests we’ve seen federal magistrate judges presiding over the past couple of years. Lake suspected that some of these printouts had been backdated when prepared on a computer, so he asked for the native electronic source files, with all metadata. The city denied the request, citing a decision from 1952 as authority for the proposition that metadata is not a public record.
Under A.R.S. § 39-121.02, Lake brought a special action in Arizona Superior Court (Maricopa County) for relief, alleging that the city was “ ‘intentionally and purposely delaying the production of certain public records’ until they could be destroyed under records retention laws.” The Superior Court denied Lake’s motion, and he appealed to the state Court of Appeals, which also turned him down, though with one dissenter.
The Arizona Supreme Court agreed to hear this matter because it is “a recurring issue of statewide importance.” In determining whether or not metadata is part of a public record, the five-judge state panel reached over to one of the better-known federal cases on this topic.
“The metadata in an electronic document is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page. Cf. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (noting, in discussing federal civil discovery rules, that “metadata is an inherent part of an electronic document.”). Arizona’s public records law requires that the requestor be allowed to review a copy of the “real record.”[citation omitted]. It would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.”
If Lake had pursued production of the native files with metadata under the federal rules applicable to his main action for employment discrimination, his counsel
would likely have relied on exactly the same case that Arizona Supreme Court referred to above, and the federal magistrate judge hearing the motion would likely have ruled exactly the same way. Different paths can lead to the same result.
It’s worth mentioning that by the time this case reached the Arizona Supreme Court, it had a much larger cast of characters than just Lake and the city. Big-name law firms filed amicus briefs on behalf of various news media alliances on one side, and on behalf of local and state government alliances on the other. About metadata, a word that most lawyers and judges had never heard of a few years ago.