METADATA AND THE LAW

          In a decision that I suspect may advance on to the next appellate level, the Arizona Court of Appeals decided on January 13th that metadata embedded in a document is not a public record even if the document itself is a public record. The case involved Mr. Lake, a Phoenix police officer, who believed he was not treated fairly by the City of Phoenix in its responses to his discovery requests when Phoenix refused to provide him with requested metadata relative to certain public records that his supervisor had created which Mr. Lake believed were relevant to his EEOC claim.

          Metadata is akin to fingerprint information in electronic document technology; the metadata tells you who created or revised a document and at what point in time these things happened or when the document was printed. One court has described metadata as “information describing the history, tracking, or management of an electronic document.” Even though this data is available, it is not something that one ordinarily looks at when viewing the document, whether it is embedded in a letter, memorandum or email. However, there has been a growing trend in litigation to request and, in appropriate circumstances, obtain this information when it is relevant to the litigation.

          In this case, the request was based upon the officer’s allegation that his supervisor may have back dated the notes which had led to the officer’s demotion. It was the officer’s contention that the demotion was in retaliation of the officer’s whistle blowing, thereby providing the motivation for the backdating. The response to the discovery request had the added twist that the defendant city took the position that the metadata were not documents maintained by the city and they were not public records. The court agreed with the city, finding that while there was a strong public policy in favor of disclosure of public records, and that there was a broad definition attributed to what were public records, it was not so broad as to encompass metadata. The court correctly pointed out that the plaintiff’s supervisor was fulfilling his duty by creating the electronic assessment of the plaintiff’s performance, but that the supervisor was not fulfilling any duty in creating the metadata and, in fact, does nothing to cause its creation. Therefore, it does not meet the definition of a public document and the court ruled that it is not to be disclosed.  

          The dissenting judge argued that the metadata is in fact a part of what all the judges agreed was a public record, arguing that “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.” While it may seem that the dissent has the better part of the argument, I must caution you that the judges who found the metadata was not a public record did so on the basis of a fairly strict interpretation of the public record statute in question and the case law which, over time, has interpreted that statute. Therefore, we are left with the dynamic often found in our ever changing modern world - - will the Arizona Supreme Court move this law forward to a more technologically appropriate place or will the court decide that its hands are tied by the statute and therefore it becomes a policy issue best left to the legislature to decide. 

Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com.

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