Court: Records law covers electronic data - East Valley Tribune: Arizona

Court: Records law covers electronic data

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Posted: Thursday, October 29, 2009 4:15 pm | Updated: 2:19 am, Sat Oct 8, 2011.

Government officials cannot deny the public access to the electronic tidbits that are embedded in their records, the Arizona Supreme Court ruled Thursday.

In a precedent-setting decision, the justices said the electronic tags that word-processing, database and spreadsheet programs attach to files and documents are as much a part of the public record as the actual printout itself.

The court was quick to say the new ruling does not mandate documents to be stored in an electronic format. Nor does it require governments to create new files.

But Justice Scott Bales, writing for the unanimous court, said if there is an electronic record, the public is entitled to the entire record, including the embedded data.

Thursday's decision is significant as more and more public records are created by - and stored in - computers.

Dan Barr, an attorney for the First Amendment Coalition, which filed a legal brief in support of public access to what is known as "metadata," said the decision will make public records requests quicker and cheaper. He said it also will make research easier.

And, most immediately, it will enable those who demand a record to see, at the very least, exactly when it was created.

Virtually all computer files have embedded data: Clicking on a document in a directory listing reveals its electronic properties, including not just the type of document it is but also its origination date. That can provide valuable information, particularly when there is a question of whether a document was written when claimed.

But the ruling is a defeat for the Attorney General's Office, which argued lawmakers never intended for this information to be part of the public record.

This case involves David Lake, a Phoenix police officer who had filed an administrative complaint and federal lawsuit alleging employment discrimination. Lake also submitted a public records request to the city for notes kept by his supervisor documenting the officer's work.

Lake, suspecting some documents created on a computer had been backdated, asked for the metadata, including "the true creation date, the access date, the access dates for each time it was accessed, including who accessed the file as well as print dates, etc.''

When the city said that data was not a public record, Lake sued.

Both a trial judge and the state Court of Appeals rejected his arguments, saying what Lake sought did not fit within what are considered "public records'' under Arizona law.

But Bales said the Court of Appeals made the mistake of trying to separate the metadata from the document itself. He said the question is simpler than that: Does the record requested include not just the information normally visible but also the embedded data.

Bales said the answer clearly is yes.

"When 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,'' he wrote.

"Arizona's public records law requires that the requestor be allowed to review a copy of the 'real record,'" Bales continued. "It would be illogical, and contrary to the public policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.''

Barr said some agencies, like the Phoenix Police Department, provide records only in paper format. That not only takes time to print and reproduce but also makes it expensive, as the city charges on a per-page basis.

This decision, he said, will allow someone to demand an electronic copy of the document, which will have to be produced on a disk or some other format that can be directly read by a computer.

Barr said requiring production of an electronic record also will make it easier for reporters and others to do their research.

Until now, he said, someone requesting data on crimes at various intersections would get a printout. This ruling requires the city to produce the database or spreadsheet containing the data, making it easier for a researcher to compare statistics.

The court, however, stopped short of making everything in a government computer system connected to a specific document a public record. That addresses concerns by David Merkel, attorney for the League of Arizona Cities and Towns, which filed a legal brief urging the court to narrowly define what is public.

"Most public officials stand ready, willing and able to honor any and all reasonable public records requests,'' Merkel said.

But he said cities feared a situation where government would have to research and produce a tracking record of every time a document was read or printed. Bales said those fears are overblown.

"A public entity is not required to spend 'endless hours' identifying metadata,'' the justice wrote. "Instead, it can satisfy a public records request merely by providing the requestor with a copy of the record in its native format.''

Put another way, copying the file containing the record to a disk would suffice, as the copy would contain the same embedded data as the original.

Bales said nothing in Thursday's ruling overturns earlier Supreme Court decisions that put limits on requests.

"Public records requests that are unduly burdensome or harassing can be addressed under existing law, which recognizes that disclosure may be refused based on concerns of privacy, confidentiality, or the best interests of the state,'' Bales wrote.

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