Gareth S. Lacy

OLYMPIA — In an opinion holding that metadata is an electronic version of a record subject to disclosure under the state Public Records Act (PRA), the Washington Supreme Court today cited Jembaa N. Cole’s article, When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal and Ethical Consequences of the Failure to Remove Metadata, published in the Shidler Journal of Law, Commerce + Technology in 2005. The court’s landmark decision, O’Neill v. City Of Shoreline, is now the second state supreme court opinion holding metadata subject to state public disclosure law. In 2009, the Arizona Supreme Court ruled similarly in Lake v. City of Phoenix.

Credit: Zina Deretsky, National Science Foundation

The controversy arose after a private citizen sent a “blind carbon copy” e-mail to various local government officials including the deputy mayor and a city council member. Later, Beth O’Neill, a member of the public, requested a copy of that email. So the deputy mayor removed the “To” and “From” information from the email and forwarded the message. O’Neill then filed a written PRA request for “all information relating to the e-mail, including how it was received . . .  from whom it was received, and the forwarding chain of the e-mail.” The city attorney released a print-out of the e-mail. O’Neill then requested all metadata pertaining to the e-mail chain. O’Neill sued the city under the PRA after the city failed to provide the metadata.

At issue in the case was whether e-mail metadata is a public record that must be disclosed under the PRA. The Washington Supreme Court held metadata is a “public record” subject to the PRA. Quoting from the PRA, the court noted that “public record is defined very broadly, encompassing virtually any record related to the conduct of government”:

‘Public record’ includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any  state or local agency regardless of physical form or characteristics. Former RCW 42.56.010 (2005) (codified as former RCW 47.12.020(41) (2005))

The Court favorably cited the Arizona Supreme Court’s holding that “when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under [Arizona’s] public records law.” The Court found this holding particularly persuasive given that Arizona, unlike Washington, has no statute defining “public record.”

On remand, the trial court must give the city an opportunity to inspect the computer’s hard drive to consider whether all public records were properly disclosed. If the City  refuses to inspect the hard drive, they will have indisputably violated the PRA. Furthermore, if the city inspects the hard drive, but cannot find the metadata, the trial court must determine whether deletion of the metadata violated the PRA: “If it is possible for the City to retrieve this information, the PRA requires that it be found and released to the O’Neills.”

This Washington Supreme Court’s decision raises issues concerning what will constitute a sufficient search of the hard drive. The court did not address, for example, whether the city must conduct  data recovery if the files have, in fact, been deleted from the computer. The Arizona Supreme Court’s opinion did not require that computer systems maintain any metadata; it only required disclosure of whatever metadata was present.

Only one other state court has considered the issue of metadata and public records. In Irwin v. Onondaga County Resource Recovery Agency, the Appellate Division of the Supreme Court of New York ruled the trial court erred in denying an order to compel disclosure of metadata associated the disclosure of the metadata associated with unpublished photographs relating to ongoing law enforcement investigations. On appeal, the court amended the judgment to order the production of the metadata. Irwin is useful for describing the three types of metadata: substantive, system, and embedded.

The metadata at issue in Irwin included file names and extensions, sizes, creation dates, and latest modification dates of digitally-stored photographs and was therefore of the “system’s” variety (metadata reflecting automatically generated information about the creation or revision of a document). The court found that such metadata “is at its core the electronic equivalent of notes on a file folder indicating when the documents stored therein were created or filed, [and therefore] constitutes a “record” subject to disclosure under FOIL.”

Other state courts have not addressed the issue of whether metadata constitutes a public record. (Kara Millonzi at Coates’ Canons blog has an excellent analysis of how the law might evolve in North Carolina.) Several useful secondary sources include: Access to Metadata in Public Records, a cover story by Peter S. Kozinets published in the July 2010 issue of  Communications Lawyer; David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and Other Electronically Stored Information After Lake v. City of Phoenix, 3 Phoenix L. Rev. 69 (2010); Andrea G. Nadel, What are “records” of agency which must be made available under state freedom of information act, 27 A.L.R. 4th 680 (2010); and Scott W. Cockerham, Lake v. City of Phoenix: Is Metadata a Public Record?, 51 Arizona L. Rev. 517 (2009).

In the civil litigation context, Kentucky Speedway, LLC v. NASCAR, Inc. (E.D. Ky.2006) found a presumption that metadata is not subject to disclosure because of the likelihood of its irrelevance. For example metadata will often only identify the typist and not the document’s author or computer from which it was generated. Nevertheless, metadata can be a serious trap for the unwary. Useful advice for businesses seeking to avoid generating metadata is available in Jembaa N. Cole’s 2005 article in the Shidler Journal of Law, Commerce + Technology, When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal and Ethical Consequences of the Failure to Remove Metadata. Cole recommends educating employees, minimizing and reducing metadata, using paper copies, and developing clean document templates.

Jembaa N. Cole is an associate in the Seattle office of K&L Gates LLP. Her practice focuses on corporate and  intellectual property transactions, including mergers and acquisitions and trademark clearance, prosecution, counseling and enforcement. The Washington Journal of Law, Technology & Arts publishes concise legal analysis for practicing attorneys. The Journal began in 2004 as the Shidler Journal of Law, Commerce +Technology. The Shidler Journal was named after Bellingham native Roger Shidler, a founding member of the law firm Shidler McBroom & Gates. In 1990 the Shidler firm merged with Preston, Thorgrimson, Ellis & Holman, which became Preston Gates & Ellis LLP, and then K&L Gates LLP. Today K&L Gates LLP, has approximately 1,800 lawyers across three continents.