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Once again the Washington Supreme Court will be called upon to evaluate the reach of the Public Records Act (“PRA”) in the digital age. On Thursday, January 27, 2011, the Court entertained oral argument in Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0, a case involving Spokane County’s failure to produce missing electronic records ostensibly stored (then erased) off the hard drive of an old, retired County computer.

In 2005, Alliance, a nonprofit government accountability group, made several public records requests seeking documents they believed would expose alleged nepotism in County hiring processes. In response to Alliance’s request, County officials checked the hard drives of the computers its employees were currently using, but did not search computers that were no longer in use (no matter how recently the computers had been retired). The hard drive of a particular computer that may have held the requested information was wiped clean and thereafter, despite Alliance’s outstanding records request, the retired computer was not searched. The parties disagreed as to whether the record did exist on the hard drive, whether the County conducted a proper search, whether the County violated the PRA, and if so, the appropriate level of penalties. The Court of Appeals held that the County did violate the PRA by failing to conduct a “reasonably adequate” search for the complete electronic information requested, and remanded the case to the trial court to determine the resulting penalties, costs and fees.

As reported by the Spokesman-Review, the Supreme Court will revisit these issues in depth.  In particular, the Justices will be asked to decide what constitutes a “reasonable” search of such electronic records in a world where computers are constantly upgraded, replaced and repurposed.  Must agencies regularly search old computers?  All electronic storage systems?  How soon can a hard drive be wiped?The Court will also face the issue of the financial burden on the County.  For example, the case raises the question of whether $100 daily penalties should keep accruing or whether the clock should have stopped running on any penalties at the time the hard drive was wiped clean.

Neighorhood Alliance comes on the heels of a another Washington State case addressing the intersection of electronic discovery and the PRA.  See O’Neill v. City of Shoreline, 240 P.3d 1149 (2010) (holding that metadata is subject to disclosure as a public record).  We’re likely to see more cases on this topic as agencies attempt to determine their responsibilities under the Act as they incorporate new practices and technologies in the digital age.

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In a departure from other court decisions pertaining to electronic public records, the Missouri Court of Appeals declined to sanction city government officials for failing to produce certain email messages requested by a citizens group.

In Concerned Citizens for Crystal City v. City of Crystal City, ---S.W.3d---, 2010 WL 4195827 (Mo. App. E.D.), the Concerned Citizens for Crystal City (“CCCC”) opposed the City’s approval of a redevelopment plan that would turn an abandoned glass factory into an iron smelter. During a protracted discovery battle, CCCC pointed to several instances of discovery violations that it alleged were prejudicial.  The group was particularly incensed by the Mayor’s and the City Clerk’s failure to produce certain emails.  The Court of Appeals affirmed the trial court’s decision to deny CCCC’s request for sanctions against the City, noting that “the emails at issue were few in number.”  The Court acknowledged that the documents had not been retained either electronically or in hard copy.  The Court accepted the City’s explanation of the missing emails: “[T]hey cannot find them, they do not have them, and nothing was done intentionally, or in an effort to hide them.”

This decision can be contrasted with O’Neill v. City of Shoreline, ---Wn.2d---, ---P.3d---, 2010 WL 3911347, a recent case decided by the Washington Supreme Court.  In O’Neill, the Court found that metadata can be a public record and is subject to disclosure under Washington’s Public Records Act.  The O’Neill decision essentially requires that emails and other electronic documents need to be preserved in their original electronic forms, as paper copies will no longer be sufficient.  Even if only a small number of records is at issue (a single email was central to the O’Neill case), proper preservation is essential.  The Missouri Court of Appeals appears to condone a “best efforts” approach to preservation of electronic records, while the Washington Supreme Court has imposed strict penalties and even proposed searching the hard drive of a government official’s personal computer to locate and obtain an electronic public record in its native form.

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Metadata is the new worry of public disclosure requests. Within the hard drive of any standard computer, a host of metadata is created with each underlying electronic document. Metadata describes the document’s history, tracking and management.

At least in Arizona and Washington that metadata is now also subject to a public disclosure, along with the underlying document itself, when requested. A recent Phoenix Law Review article analyses this proliferating phenomenon. David W. Degnan, Accessing Arizona’s Government: Open Records Requests for Metadata and other Electronically Stored Information after Lake v. Phoenix, 3 Phoenix L. Rev. 69 (2010).

Lake v. Phoenix, 222 Ariz. 527, 218 P.3d 1004 (2009), involved a request by a demoted City of Phoenix police officer, attempting to show through documents’ metadata that comments about his performance were backdated to conceal retaliation for his whistleblowing activities. The Arizona Supreme Court held that this metadata (showing the creation and history of the documents) was a public record and must be disclosed. In Washington, the State Supreme Court arrived at the same conclusion regarding metadata in O’Neill v. City of Shoreline, _____Wn.2d____, ____P.3d____, (2010) WL 3911347 (2010). There, the requestor of the metadata was attempting to find transmission history of the author and recipients of an e-mail. The email was originally sent to the Deputy Mayor’s home computer, and later discussed in a Council meeting. A print copy of the email was provided to the requestor in response to the original request. But, the requestor later sough the metadata for the email that had by then been deleted from the Deputy Mayor’s home computer. The Washington Supreme Court found that the metadata associated with that e-mail was also a public record and that the computer drive on the Deputy Mayor’s home computer should have been searched to find that metadata. The email, and the underlying metadata, had become part of the City’s public records.

The issues with the nature of electronic records and their storage are multiplying. As the Law Review article points out, a study published as early as 2003 suggested that 93% of all communication was then conducted in an electronic medium; and the percentage has only risen. In addition, there are divergent standards for keeping and retrieving electronic records in response to actual or threatened litigation in contrast to public records act requirements. In electronic discovery, there can be a court enforced reasonableness standard. In the public records context there may be no such limitation. But, public records laws in Washington and most other jurisdictions do not require a public agency to produce any new document or summarize documents in response to a public records request. And, a courteous discussion with a requestor may eliminate the need to search for or retrieve metadata associated with any requested documents, as the requestor may have no interest in that level of electronic scrutiny.

The Law Review article concludes with the well recognized caution that in the end there “is the need for state and local government agencies to have electronic record management procedures (and resources) in place to respond quickly and efficiently to future open records requests involving ESI [electronically stored information].” The record management systems for ESI must also include metadata, at least in Arizona and Washington.
 

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