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February 20, 2009

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.

February 20, 2009 | Permalink | Comments (2) | TrackBack

February 18, 2009

The Democracy Canon

Loyola (Los Angeles) Law School's Richard L. Hasen has written on that subject on a paper on ssrn, here. The abstract:


Beginning in the 19th century and through the 2008 presidential elections, American state courts have consistently applied a rule of thumb, which I term the "Democracy Canon," to interpret certain state election statutes. According to one early formulation, "[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor." Despite its pedigree, the canon thus far has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Moreover, the canon has played an unrecognized role in some of the most contentious election law cases of modern times, including Bush v. Gore.
Part I briefly traces the history and longstanding use of the Democracy Canon in American courts. Part II defends the Democracy Canon. It argues that the canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. As a clear statement rule, the canon requires the Legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests.
Part III explores the politicization issue arising from use of the Democracy Canon through a closer examination of the New Jersey Supreme Court's controversial opinion in New Jersey Democratic Party v. Samson, allowing Democrats to replace a U.S. Senate candidate's name on the ballot close to election time. Part III uses Samson to illustrate that the use of canons in election law cases is bound to be more controversial and high-salience than their use in garden-variety statutory interpretation cases. In the context of a hot-button election law case, a court's use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the canon in ways consistent with their political preferences. The best way to deal with the latter problem is through ex ante clear drafting by legislatures.
Finally, Part IV examines constitutional questions arising when a federal court is asked to overturn a state court's use of the Democracy Canon. When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). Contrary to the position of the Bush v. Gore concurring Justices, this Article contends that use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the canon in a way that counters longstanding jurisprudence or practice should a federal court consider intervening in a state court election case on constitutional due process grounds.

Thanks to Ted McClure at Phoenix Law for pointing me to it.

February 18, 2009 | Permalink | Comments (1) | TrackBack

Justice Roberts on Rehnquist: What Would the Statute Say?

Chief Justice Roberts discusses Rehnquist's legacy, including the turn toward text, in an interesting article, here. A video of Roberts' entire talk is here. He spoke at the University of Arizona Law School.

On a completely unrelated note, I almost went to UA's law school -- grew up in Tucson and went to UA undergrad -- but took the bait and went to Northwestern Law School, ended up practicing in Texas, and sometimes wonder... what if...

Wildcats, Bear Down!

February 18, 2009 | Permalink | Comments (0) | TrackBack