Electronic Discovery Law
Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production
Lake v. City of Phoenix, 207 P.3d 725 (Ariz. Ct. App. 2009)
In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law.
In late 2006, after filing an Equal Employment Opportunity Complaint against the city, plaintiff submitted a series of public records requests. The city’s subsequent production contained hard copy versions of electronic documents responsive to his request for all notes “documenting supervisory performance” within the relevant time frame. Plaintiff suspected the notes had been backdated and requested production of the metadata associated with each document. The city refused arguing that the requested metadata was “not maintained by the city and was not available,” and that metadata was not a public record. In response, plaintiff brought a special action before the district court. Finding it lacked jurisdiction to hear the matter, the superior court denied plaintiff’s motion to compel. Plaintiff appealed, and the appellate court affirmed the superior court’s ruling denying the production of metadata.
Addressing the merits of plaintiff’s request, the appellate court conceded that Arizona “has a strong policy of public access to and disclosure of public records,” but noted that the presumption requiring disclosure arises only after a determination that a certain record is a public record. The court continued, stating that although the term “public record” had not been defined by the legislature, the Arizona courts have long recognized three alternative definitions:
(1) a record "made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference"; (2) a record "required to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done"; or (3) a "written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by ... law or not."
Addressing each definition in turn, the court found that metadata did not fall under the first definition where the officer creating the notes at issue “did not create the metadata pursuant to any such duty, as it was generated only as a by-product of his use of a computer” and where “the purpose of the metadata was not to “disseminate information to the public” or “to serve as a memorial of an official transaction…”
Similarly, regarding the second definition, the court found that “[the officer] was not ‘required by law’ to create or maintain metadata about his notes nor was he required to create or maintain such data ‘to serve as a memorial and evidence of something written, said or done.’”
The metadata also did not fall within the scope of the third definition, although the appellate court admitted that it was a closer question. Ultimately, the appellate court found the third definition did not apply and drew a distinction between the information actually created by the officer, i.e., the notes, and information created by the computer, i.e., the metadata.
The appellate court then addressed plaintiff’s arguments that the metadata contained valuable information, unavailable from any other source, and that the information was essential for authentication. The appellate court rejected the arguments. Relying on its prior reasoning, the court first found the arguments inapplicable because metadata is not a public record. Second, the court noted plaintiff’s failure to provide authority suggesting that Arizona’s public records law was “co-extensive” with the evidentiary rules in litigation. Third, the appellate court found that the law supported a distinction between the metadata records sought and public records available to the public.
Addressing the argument that because the metadata is embedded it should be considered a public record, the appellate court found that “[p]hysical location of the information…does not determine whether it meets the definition of a public record.” The court went on to note the “practical reality” that each time a government employee logs onto the computer, clicks a mouse, pushes the keys, “a ‘record’ has arguably been generated.”
In conclusion, the court summarized its discussion and held that because metadata was not a public record, the presumption in favor of production did not apply.
It should be noted that at least one court in Washington State has reached the opposite conclusion regarding the production of metadata as a public record. O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Wash. Ct. App. 2008). This case was mentioned in a footnote by the Arizona Court of Appeals and was distinguished in light of Washington’s specific statutory language defining a public record as, “any document, including ‘data compilations from which information may be obtained or translated,’ which contains ‘information relating to the conduct of government… owned, used, or retained by any state or local agency regardless of physical form or characteristics.’”
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