The Court of Appeals of Arizona recently made a significant distinction
between the discoverability of metadata and the discoverability of its parent
document, holding that the metadata derived from its public document parent was
not automatically deemed public itself.
In David Lake v. City of Phoenix, No. 1CA-CV07-0415, 2009 WL 73256, *2
(Ariz. Ct. App. Jan. 13, 2009), Plaintiff, a former police officer, filed an
EEOC complaint against his former employer, the City of Phoenix. In conjunction
with his lawsuit, Plaintiff filed multiple public records requests, in response
to which the City produced some relevant public documents and withheld others on
the basis of responsiveness and/or unavailability. Unsatisfied with the City’s
limited production, Plaintiff filed a special action in Superior Court
requesting that the City be compelled to provide all public records responsive
to his requests, but the Superior Court denied Plaintiff’s plea.
On appeal, Plaintiff argued that there were indications that the documents
provided by the City -- specifically, certain performance evaluations of
Plaintiff created by his supervisor -- had been “back-dated,” perhaps in
response to Plaintiff’s lawsuit. As a result, Plaintiff argued, the metadata
from the performance evaluations was crucial to making a determination as to the
validity of the documentary evidence by providing information as to how, when,
and by whom the performance evaluations had been created, edited, and, perhaps,
altered after the fact. The metadata constituted a “public record,” so said
Plaintiff, because it and the performance evaluations from which the metadata
was created were one and the same document; thus, the metadata should be
available for public inspection in the same manner as other public records,
including, of course, the parent documents.
In its opinion denying Plaintiff’s request for release of the metadata, the
Court refused to recognize that the metadata constituted a public record even
though its “parent” documents qualified as such. The Court reasoned that
metadata should not be considered a public document because metadata (i) is not
required to be kept by the City as the performance evaluations are; (ii) was
“created” by a computer and not by a public officer; (iii) did not memorialize
an official transaction; and (iv) could “stand alone.”
In a persuasive dissent, Judge Patricia K. Norris argued that metadata was
not the “electronic orphan” that the majority seemed to view it as, but was
actually a part of the document itself and should be considered a public
document so long as its parent document is also deemed to be a public document.
This case should serve as a reminder that varying jurisdictions view metadata in
strikingly different ways. Attorneys, corporate counsel, and clients alike need
to be vigilant in assessing their jurisdiction’s individual treatment of
metadata and prepare litigation strategy with an eye towards both views.
For more information please see McGuireWoods'