Arizona Appellate Court Holds Metadata is not a "Public Record"

I've written extensively about metadata, the 'hidden' information that often accompanies word files. It can show when a document was created, when it was revised, who authored it, and, in some instances, show the revisions to a document.

In a case in Arizona, a litigant requested metadata associated with electronic notes about his employment because he believed they had been altered after creation or had been "back dated." He made a request for the documents under Arizona's Public Records act, but that was denied, so he sued. The court held that metadata is not a public record in terms of Arizona's statute in Lake v. City of Phoenix, ___ P.2d __ (Ariz. App. 2009).

The court applied the judicial approach to determining whether the metadata was a "public record" and did so in a seriously rigid fashion, which inspired a strong dissent.

In part, the majority relied on the presence of the word "record" in one section of the statute and "public record" in another to justify its holding:

The public records law provides in relevant part as follows:

B. All officers and public bodies shall maintain all records, including records as defined in § 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state. . . . D. Subject to § 39-121.03: 1. Any person may request to examine or be furnished copies, printouts or photographs of any public record during regular office hours or may request that the custodian mail a copy of any public record not otherwise available requesting person. . . .

A.R.S. § 39-121.01(B) and (D)(1) (emphasis added).

Based on the plain language of the statute, public bodies have the duty to maintain all records. A member of the public, however, has the right to inspect or obtain a copy, printout, or
photograph of public records. The legislature has broadly defined a “record” but has chosen not to define a “public record,” notwithstanding that the public records law has been amended several times since our supreme court rendered the Mathews decision.9 Thus, to date the legislature has deferred to the courts on this issue. See Daou v. Harris, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) (applying presumption that the legislature knows of existing laws when it enacts or modifies a statute). Prior decisions of our supreme court have unambiguously recognized that not all documents found within the custody or possession of a
public official are public records.

The dissent-in-part in contrast adopted a much more purposivitist approach, reasoning in part:

Focusing solely on the metadata, the majority reasons it is not a public record because it does not fit within any of the traditional public record formulations recognized by Arizona courts. See supra ¶ 12. Whether the metadata by itself fits within these formulations is not the question we should be asking; the question before us is whether the electronic version of Conrad’s notes, which includes the metadata, is a public record. The answer to this question is “yes.”

This is a fascinating case, since obviously when the legislature wrote the statute metadata didn't exist. (I'm guessing most legislators TODAY don't know what metadata is...). Stay tuned.