Metadata as a Public Record: What it Means, What it Does

The failure to comply with a records request for email metadata will cost a Washington city more than half a million dollars in statutory and attorney's fees, a Washington Superior Court judge recently decided. On June 28, 2013, the judge ordered the City of Shoreline to pay $538,555 after the Washington Supreme Court ruled that metadata associated with public records is subject to disclosure under the state's open records law.

O'Neill v. City of Shoreline arose after Beth O'Neill requested a copy of an email and its accompanying metadata to find out its original sender. The email, criticizing the city council, had been read aloud at one of the council's meetings and wrongly attributed to O'Neill. Although Shoreline provided O'Neill with a paper copy of the email and metadata from forwarded copies of the email, it never provided O'Neill's specific records request -- that of the metadata associated with the original email, including the sender and recipient information. The recipient, Shoreline Deputy Mayor Maggie Fimia, said she must have inadvertently destroyed it, as Shoreline was unable to find the deleted email and its associated metadata in her email folder. After the Washington Supreme Court found that the metadata was a public record, the court remanded the case to the trial court, granting Shoreline the opportunity to inspect Fimia's home computer hard drive for the metadata "only because Fimia used her personal computer for city business." The trial court, however, found that Shoreline had failed to conduct an adequate search of the hard drive, "resulting in the permanent loss of the requested public record," and that Shoreline and Fimia "violated their statutory duty to provide Plaintiffs the fullest assistance in handling their records requests." 

In determining that metadata fell within the scope of public records laws, the Washington Supreme Court noted the importance of public access to information that relates to government conduct. It stated, "Our broad [public records statute] exists to ensure that the public maintains control over their government, and we will not deny our citizenry access to a whole class of possibly important government information."

With the ruling, Washington became the second state to explicitly establish metadata as within the ambit of state records laws. Arizona did so in a 2009 case, Lake v. City of Phoenix, in which the court overruled a denial of a demoted police officer's request for access to metadata regarding his performance reports, which he believed had been altered after he had reported "serious police misconduct" to his superiors. The Arizona Supreme Court noted that "[w]hen a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page." The court called it illogical and contrary to the openness policy of the law to "conclude that public entities can withhold information embedded in an electronic document . . . while they would be required to produce the same information if it were written manually on a paper public record."

Other states have been increasingly addressing this issue as well, although not yet at binding statewide levels. A New York appellate court and a Philadelphia trial court both found metadata to be requestable records, and a North Carolina department has adopted best practices guidelines regarding the nature and disposition of metadata. The guidelines explicitly mention the probability of metadata's inclusion under the state's broad definition of a public record.

As the states no doubt recognize, metadata plays a significant role in many contexts. In 2012, fugitive John McAfee's location was revealed after journalists posted a picture of him on their website without fi