Ariz. appeals court rules ‘metadata’ aren’t public records +

PHOENIX — A divided Arizona appellate court has ruled that hidden electronic data that indicate how and when documents are produced with word-processing computer programs aren’t themselves public records.

The three-judge Court of Appeals panel’s Jan. 13 majority opinion rejected a dissenting judge’s argument that a Phoenix police officer was entitled to “metadata” for notes written by a supervisor of the officer.

Metadata are data embedded in documents to track authors, when something was saved and what changes were made. Metadata aren’t visible when a document is printed on paper nor do they appear on a computer screen in normal settings.

The officer, David Lake, said he wanted the notes’ metadata to see if the supervisor had backdated notes from before Lake’s demotion.

The majority said in Lake v. City of Phoenix that Arizona’s public-records law doesn’t define public records but that metadata don’t satisfy a three-pronged test set by a 1952 Arizona Supreme Court decision to determine whether documents are public records subject to mandatory disclosure upon request.

Applying the test, the opinion said metadata were produced only as a byproduct of a public officer’s performance of his duty, their creation or preservation weren’t required by law and because the public transactions being recorded were productions of the supervisor’s notes, not the metadata.

“We do not question that metadata may contain valuable information, but we reject Lake’s contention that electronic evidence is legally equivalent to a public record,” Judge Michael J. Brown wrote in the majority opinion joined by Judge Ann A. Scott Timmer.

The dissenting judge, Patricia K. Norris, said the majority failed to recognize that metadata are part of the requested document.

“It is not an electronic orphan,” Norris wrote. “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.”

In his appeal, Lake argued that not allowing parties to discover metadata would disable Arizona’s presumptively open-records law by limiting its reach and denying the public the benefits of computerization.

The city argued that metadata weren’t public records and weren’t records maintained by the city.

Lake obtained some records, not involving metadata, under multiple public-records requests, but a trial judge said Lake wasn’t entitled to any of the material that the city refused to provide.

The Court of Appeals panel ruled that Lake was entitled to the other records.

By The Associated Press
01.20.09