In a public records case with significant implications for government management and storage of electronic data, the Washington Supreme Court ruled on October 7, 2010 that metadata, the “hidden information about electronic documents created by software programs,” can be a public record and subject to disclosure under that State’s Public Records Act, Chapter 42.56 RCW. For Washington local governments and public agencies, the Court’s decision in O’Neill v. City Of Shoreline, Case No. 82397-9 (Oct. 7, 2010), puts public records officers and other employees on notice that e-mails and other electronic documents may need to be maintained in their original electronic forms to preserve metadata; paper copies will no longer be sufficient for preservation and may not be responsive to some requests. In a footnote, the Court pointed out that regulations on document retention recently promulgated by the State Archivist now require preservation of e-mail metadata. WAC 434-662-150.
Beyond the issue of metadata as public record, the Court also tangled with the issue of electronic government records on a public employee’s personal computer. The document that gave rise to this case was a single e-mail forwarded to the Deputy Mayor of the City of Shoreline as a blind carbon copy. After the e-mail’s contents were discussed at a City Council meeting, a citizen requested a copy of the e-mail. The City provided a paper copy of the e-mail. Later, the citizen requested metadata for the complete e-mail thread but the Deputy Mayor said she had already deleted the e-mail. But the Court ruled that since the Deputy Mayor had used her personal computer for City business, it is appropriate for the City to search her hard drive in attempt to locate the deleted metadata. If the City refuses to inspect the hard drive, then the Supreme Court indicated the trial court should find a Public Records Act violation. No direction was given as to what would happen if the Deputy Mayor (no longer in office) does not consent to the search.
Although this was a 5-4 decision, the dissent does not question that metadata associated with an electronic document may be a public record. This is not surprising given the liberal construction accorded the broad definition of “public records” and “writings” in RCW 42.56.010. See RCW 42.56.030 (“This chapter shall be liberally construed and its exemptions narrowly construed….”) Instead, the dissent questions a more basic point as to whether materials on a public employee’s private computer, metadata or otherwise, are public at all since they are not “retained by any state or local agency.” The dissent also questions how the majority can condition the City’s compliance with the Public Records Act on “an impermissible search or inspection” because obtaining records from an employee’s personal computer would be “highly offensive to a reasonable person” which would bar the requester from obtaining the record under RCW 42.56.050.
Although the Court’s two factions may disagree on the limits to which an agency must go to obtain public records from a personal computer and whether public work on private computers is public, the clear direction from the entire Court is that metadata falls within the category of materials that can be public records. Local governments will need to evaluate how they manage and store electronic data to ensure they are properly preserving and producing metadata as part of their public records.
The decision in O’Neill on public metadata access is the first such case in Washington and the holding is similar to that of the Arizona Supreme Court in 2009.
Some helpful links on metadata and local government records management:
Washington State Archives Records Management for Local Governments (including newly adopted retention schedules).
The Sedona Guidelines: Best Practices & Commentary for Managing Information and Records in the Electronic Age (no cost registration required).