By Richard M. Goehler, Frost Brown Todd LLC

Recently, the Arizona Supreme Court found that metadata – information about the history, tracking and management of an electronic document – was subject to the Arizona Public Records Law. 

The ruling of the Court in the case of Lake v. City of Phoenix established that information held in an electronic medium was subject to the state’s public records law in the original medium, including all metadata attached to the document or record.  The decision by the Arizona Supreme Court in the Lake case is thought to be the first one on this issue by a state supreme court and will likely be persuasive as other states deal with issues involving the disclosure of electronic records under a public records or freedom of information request.

The case arose from a claim brought by David Lake against the Phoenix Police Department for employment discrimination.  In pursuing his lawsuit against the City of Phoenix, Lake submitted a records request for all notes made by his supervisor concerning his job performance. 

After reviewing the printed notes he had received in response to his records request, Lake believed that a number of the dates in those records had been changed.  As a result, he requested the documents in their original electronic form, including all metadata associated with them. 

The City rejected Lake’s request, asserting that metadata was not part of the definition of the documents within the Arizona public records law.  Both the trial court and the Arizona court of appeals ruled in favor of the City.  In that regard, the majority opinion by the court of appeals in favor of the City was based in part upon a finding that metadata was not created intentionally by the computer user but only as a by product of use of the computer. 

The court of appeals found that a public official’s obligation was no greater than “memorializing his notes, whether by computer or other medium.”  In the view of the court, therefore, including the metadata was beyond the scope of that duty and, as such, could not be considered to be a part of the public record. 

On the other hand, a strong dissent by Arizona court of appeals judge Patricia Norris took a different approach, finding the metadata to be an inherent part of any electronic document.  Judge Norris reasoned that when an electronic public record is requested, the entire record should be produced, including the metadata embedded within it.

According to Judge Norris, “[m]etadata does not stand alone.  It is not an electronic orphan.  It has a home; it exists as part of an electronic document.  When, as here, that electronically created document is a public record, then so too is its metadata.” 

Following the court of appeals’ decision, Lake appealed to the Arizona Supreme Court.  A number of media organizations filed amicus briefs in support of Lake’s position, emphasizing the importance of interpreting the Arizona public records law broadly. 

In its unanimous opinion, the Arizona Supreme Court held 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.” 

In reaching its decision, the Court stated that the intermediate court of appeals had erred by parsing the electronic version of the supervisor’s notes and focusing separately on the metadata contained within the document.  The pertinent issue, according to the Supreme Court, was not whether metadata considered alone is a public record.  Instead, the question was 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. 

The Supreme Court went on to state that the City of Phoenix did not dispute that the supervisor’s notes are public records kept in an electronic format.  Further reasoning, the Court found that metadata in an electronic document is part of the underlying document; it does not stand on its own. 

Accordingly, when a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page.  The Court further found that it would illogical, therefore, and contrary to the policy of openness underlying the public records laws, to conclude that public entities could 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.  Accordingly, the Court found that the metadata was subject to disclosure under the Arizona Public Records Law.