Arizona Supreme Court finds metadata subject to public records request
On October 29, 2009, the Supreme Court of Arizona overturned the Court of Appeals’ decision in the e-discovery case of Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009). It held that when a public entity maintains a public record in electronic format,then the electronic version, including any embedded metadata, is subject to disclosure under public records laws.
The public record request arose out of the underlying employment discrimination litigation between the city and David Lake, a Phoenix police officer, who sought the production of metadata associated with notes he suspected were backdated. The request was denied by the city, who contended that the metadata was not a public record. The refusal was upheld on appeal.
In overturning the Court of Appeal’s decision, the unanimous decisions of the Supreme Court of Arizona stated that “[t]he court of appeals erred in concluding that ‘the public records law supports a distinction between the metadata ‘records’ that Lake sought to acquire and the ‘public records’ that are accessible to the public.’” The pertinent question, as identified by the Supreme Court, was not whether the metadata itself could be considered a public record, but rather, “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.” Accordingly, the court held 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 public records law.”
In reaching its conclusion, the Supreme Court of Arizona adopted the reasoning of the dissenting judge below, Judge Norris, who argued that metadata is not an "electronic orphan," but instead part of the computer-created document itself. If the computer-created document is a public record, the Supreme Court of Arizona reasoned, the attached metadata necessarily is as well.
The Supreme Court of Arizona also attempted to allay concerns that the ruling would create an "administrative nightmare" for public entities by clarifying that a public entity can satisfy a public records request by providing the requestor with a copy of the record in its native format – this can be paper copies if the nature of the request precludes any need for the electronic version. What was not addressed in this decision is whether, and when, a public entity has the duty to preserve public records in electronic format.
