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Metadata is Subject to Disclosure Pursuant to Washington’s Public Records Act

Posted in CASE SUMMARIES

O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010)

In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act (“PRA”).

On September 14, 2006, Diane Hettick, a private citizen, sent an email to Lisa Thwing, a private citizen, containing criticism of the Shoreline City Council (“the Council”).  Thwing forwarded that email to herself and then to Shoreline Deputy Mayor Maggie Fimia and others using the blind carbon copy function.  As a result, only Thwing’s name appeared as a recipient to the email.  As outlined in the dissent to this case, the email to Fimia was unsolicited and was received “at home on her personal computer.”  At a public meeting of the Council, Fimia referred to the email and erroneously identified Beth O’Neill as the author.  Ms. O’Neill immediately denied being the author and made an oral request for the email, to which Fimia readily agreed.  After returning home, Fimia forwarded the email to her personal address, removing the “to” and “from” lines identifying Thwing, and then forwarded that email to City of Shoreline (“the City”) staff.  The email was produced to O’Neill in hard copy.  Unsatisfied, O’Neill requested all information relating to the email, including information regarding senders and recipients.  The original email was then produced in hard copy.  Still unsatisfied, O’Neill requested the attendant metadata.  Unfortunately, by that time the original email had apparently been inadvertently deleted, thus rendering the requested information unavailable.  Despite the subsequent receipt of yet another version of the email and the metadata extracted from the computer of one of the other, original recipients of the email from Thwing, O’Neill filed suit alleging a violation of the Public Records Act.  The trial court found in favor of the City.  On appeal, the Court of Appeals held that metadata was subject to disclosure and, more specifically, that the metadata associated with Thwing’s original email to Fimia was subject to disclosure and reversed the trial court.  Upon the City’s and Fimia’s appeal, the case went before the Supreme Court.

Noting this was a case of first impression in Washington, the court referenced a recent opinion from the Arizona Supreme Court, the only other court to address this question, and its holding that metadata was subject to disclosure.  Turning to the state of the law in Washington, the court held that metadata was subject to disclosure pursuant to the PRA:

Whereas no statute defined "public records" in Arizona, a very broad statute defining public records as nearly any conceivable government record related to the conduct of government is liberally construed in Washington.  See former RCW 42.56.010 (codified as former RCW 47.12.020(41) (2005)), .030.  Metadata may contain information that relates to the conduct of government and is important for the public to know.  It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom.  Our broad PRA exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information.  We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.  There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed.

The court declined to hold that the PRA had been violated, however, and instead gave the City the “opportunity” to search the hard drive of Fimia’s home computer (upon receiving her permission) to determine if it was possible to recover the requested metadata and thus fulfill O’Neill’s request.  The court noted that such an inspection was “appropriate only because Fimia used her personal computer for City business.”  The court then provided instruction to the trial court depending on the outcome of the search, including that if the City refused to search, it should be found to have violated the PRA.

Regarding the question of whether every request pursuant to the PRA implies a request for metadata, the court stated that “[w]hile we agree that metadata is included within the PRA definition of a public record, this does not mean that a government agency must provide metadata every time a request for a public record is made” and held that “the wording of [O’Neill’s] oral request did not include metadata.”