Arizona Supremes: Metadata Subject to Public Records Law

Arizona is suddenly on the cutting edge of e-discovery law, with a new decision from the state's supreme court. 

In what freedom-of-information advocates hailed as a groundbreaking victory, the Arizona high court held Thursday that when a public entity maintains a public record in electronic format, any attached metadata also constitutes a public record subject to disclosure.

Writing for the unanimous Court, Justice Scott Bales stated that "[i]t 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."

The issue arose when a recently-demoted Phoenix police officer filed an administrative complaint and a federal lawsuit alleging employment discrimination.  In connection with the litigation, the officer also submitted a public records request to the City of Phoenix, seeking notes that his supervisor made that were kept in his personnel file.  After the City produced the notes in paper copy, the officer came to suspect that the notes, which had been created on a computer, had been backdated.  He sought production of the associated metadata so that he could determine when the document at issue was created or modified and by whom.  The City of Phoenix denied his request, citing a 1952 Arizona Supreme Court case in support of its assertion that metadata did not constitute a public record.

In overruling the Court of Appeals - which had upheld the trial court's ruling that the City need not produce the metadata - the Arizona Supreme Court 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 Court reasoned, the attached metadata necesarily is as well.

The Court also sought to allay concerns that the ruling would create an "administrative nightmare" for public entities, finding that a public entity can satisfy a public records request by producing the requested records in native format.  The Court, however, expressly declined to address whether and when a public entity has the duty to preserve public records in electronic format.

As Arizona goes, so goes the nation?  A Washington Court of Appeals ruled last summer in O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Wash. Ct. App. 2008) that the electronic version of an e-mail, along with the associated metadata, constitute public records subject to that state's public records law.  Unlike the Arizona law, however, the Washington public records act specifically provides that such items are subject to disclosure.  That case is now pending before the Washington Supreme Court.