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Thursday, October 29, 2009

Courts - Arizona Supreme Court holds that embedded metadata in an electronic public record is subject to disclosure

The case is David Lake v. City of Phoenix. The opinion of the Arizona Supreme Court begins:

Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” Ariz. Rev. Stat. (“A.R.S.”) § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. 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.
How did the issue arise? From the opinion:
David Lake, a Phoenix police officer, filed an administrative complaint and federal lawsuit alleging employment discrimination by the City of Phoenix. He also submitted a public records request to the City, seeking notes kept by his supervisor, Lt. Robert Conrad, documenting Lake’s work
performance. After reviewing paper copies of Conrad’s notes, Lake suspected that they had been backdated when prepared on a computer. Lake then requested “‘meta data’ or specific file information contained inside . . . [Conrad’s notes] file,” including “the TRUE creation date, the access date, the access dates for each time it was accessed, including who accessed the file as well as print dates etc.”1 The City denied the request, contending that metadata is not a public record under Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).
Here is the just-issued statement of the Reporters Committee for Freedom of the Press. Some quotes:
The Arizona Supreme Court today ruled that metadata – information about the history, tracking and management of an electronic document – is subject to the state’s public records law.

Several national media organizations supported Phoenix police officer David Lake’s challenge that the city improperly denied his 2006 public records request for the metadata about documents he had previously requested and received. The city refused Lake’s request, arguing the metadata did not fall within the state’s definition of public records, which a court established in 1952, long before the advent of electronic documents.

In a unanimous opinion released today, the state’s high court held, “If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure.”

David J. Bodney, a lawyer who helped write a friend-of-the-court brief on behalf of The Associated Press, Gannett Co., The E.W. Scripps Company, and The Reporters Committee for Freedom of the Press, said the state Supreme Court decision is a victory for public access.

“The decision is important because we live in an electronic age where maintenance and preservation of public records in electronic format is quickly becoming the norm,” Bodney said. “Public bodies should not be permitted to withhold that information from public inspection.” * * *

Bodney said the state Supreme Court’s decision may be the first one of its kind for a state high court.

The Arizona decision could be persuasive in other states, including Washington, where the Supreme Court has agreed to hear a metadata case this term. The City of Shoreline is appealing a 2008 a Washington appeals court's decision that metadata is a public record in O’Neill v. Shoreline.

This site provides links to some of the briefs in the case.

An Indiana experience: I ran in to the issue of a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents in March of 2007. Unfortunately, the public access counselor at the time found in favor of the agency, in a somewhat confusing opinion. (My interest at the time was not in any potential metadata, but in accessing digital copies of Word documents, rather than paper copies, because thousands of pages were involved.) Here are come quotes from my request for IDEM records:
Late last fall, when the [IDEM online] Enforcement Database had not been updated since April of 2006. I filed a request with the OE for digital copies of all the outstanding NOVs and AOs. (Note: When finalized, a digital copy of every NOV and AO is filed with the OE administrative assistant in change of keeping the Enforcement Database updated. These documents are in MS Word format.)

I was told filling my request was not possible, that these documents might contain "deliberate, privileged and confidential material" and also might contain metadata. I was offered the opportunity to obtain paper copies of the approximately 800 multipage documents. * * *

However, when I requested the January 2007 digital documents earlier this year, I was again put off and when, last week, I requested what were now both the January and February documents, I was notified:

The January 2007 enforcement records are available on the IDEM webpage at http://www.in.gov/serv/idem_oe_order. Hard copies of those records are also available in the IDEM Central File Room on the 12th floor of the Indiana Government Center North, 100 N. Senate Ave, Indianapolis, IN.
I believe this is a denial to the public right of access under IC 5-14-3-3(d), which provides that "a public agency shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, etc... if the medium requested is compatible with the agency's data storage system."
In short, the option given to me by IDEM, and the one with which the PAC agreed, was that I could either purchase the hundreds of pages of paper printouts, or search for and retrieve the documents one-by-one from the IDEM webpage, where the original MS Words documents have been mechanically converted into primitive html (an example). My requests for e-mail attachments and my offers to provide CDs were denied.

The situation has not improved in the intervening years. The documents are still posted for the public about six weeks late, are still in barely readable html, and users still are forced to search for them and download them one-by-one.

[More] Robert Anglen of the Arizona Republic writes:

For years, the City of Phoenix has routinely refused to release public records in electronic form.

If you wanted a record, you had to pay for a copy on paper. If you wanted thousands of pages of public records, you had to pay for a copy of each page.

It didn't matter if the city kept the records in electronic format or if you offered to provide a CD or requested an e-mail attachment. The city said no. The official line: the law only says we have to give it to you, it doesn't say how we have to give it to you.

And the example set by Phoenix was followed by other cities and government agencies across the state that refused to release electronic records.

No longer. On Thursday morning the Arizona Supreme Court ruled that electronic records maintained by public agencies are subject to disclosure under the law.

The court took it a step farther and ruled that metadata contained in computer files is also a public record. Metadata is the coding contained in a file that shows, among other things, when and how a document was created.

"We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law," the court said. "Our decision is unlikely to result in the administrative nightmare that the city envisions."

This makes Arizona only the second state in the country where a court has ruled that electronic records are subject to disclosure.

And there is nothing esoteric about the decision. It affects everybody who has ever attempted to access records.

Want an example?

The Arizona Republic recently requested the applications of a particular set of license holders in Phoenix. There are hundreds of records and there is no question that the applications are public records. The city kept a database of these records but refused to take a few minutes and copy the information onto a blank CD.

Instead, the city said reporters would have to pay for each page of the records...and a staff person would have to photocopy each page by hand.

Posted by Marcia Oddi on October 29, 2009 06:18 PM
Posted to Courts in general