Tip of the hat to my friend and partner Stan Freedman, the Supreme Court of Arizona en banc this week 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 under our public records laws.
The case involved an employment discrimination action by a Phoenix policeman David Lake who suspected that there had been some backdating or manipulation of his employee file. He moved to see access to the metadata.
As the Phoenix paper reported:
A suspicious Lake requested the metadata from the printout’s original Word document, thinking he might find evidence that the notes had been written after the demotion. The city denied the request and was backed up by the Maricopa County Superior Court. When Lake took his case to the Arizona Court of Appeals, two of three justices ruled against him, claiming that metadata were not public records under the state’s open records law.
The Arizona Supreme Court announced that metadata are, in fact, public records:
The metadata in an electronic document is part of the underlying document; it does not stand on its own. 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.
It would be illogical, and contrary to the policy of openness underlying the public records law, 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 records.
The five members of the state Supreme Court returned the case to the Superior Court for new consideration based on their decision, including whether Lake should be reimbursed for his attorney fees.