A recent decision from the Washington Supreme Court considered “whether metadata is a public record that must be disclosed under the [state] Public Records Act (PRA)”. O’Neill v. City of Shoreline, __ P.3d __, 2010 WL 3911347 (Washington Supreme Court 2010). The Supreme Court noted that this was “a matter of first impression”, i.e., an issue it had not previously addressed. O’Neill v. City of Shoreline, supra.
Here’s how this civil case arose:
On September 14, 2006, Diane Hettrick (a private citizen) wrote an e-mail to Lisa Thwing (also a private citizen) and possibly others. The relevant portion of the email stated:
My dear friend, Beth O'Neill has asked me to pass along information about our dysfunctional Shoreline City Council. Beth and some other folks have been working hard battling certain issues regarding an illegal rental in their neighborhood. What should be a legal and zoning issue has gotten mired into the politics of our 32nd District Democrats and certain City Council folks are playing favorites with their own political supporters.’
On September 18, Thwing forwarded this e-mail to Shoreline Deputy Mayor Maggie Fimia, City Councilmember Janet Way, and others. The e-mail Fimia received did not list any other recipients that Thwing had sent it to, as Thwing had first forwarded the e-mail to herself and blind carbon copied all other recipients. As a result, only Thwing's name and e-mail address showed up as recipients on the e-mail header Fimia received.
At a public meeting of the Shoreline City Council on September 18, Fimia stated that she had been sent a copy of an e-mail allegedly sent by `a Ms. Hettrick and a Ms. O'Neill’ accusing the Council of improper conduct. Ms. O'Neill immediately made an oral request for that e-mail and denied authoring it. Fimia stated that she `would be happy to share the e-mail with Ms. O'Neill.’
When she returned home from the council meeting, Fimia forwarded the original Thwing e-mail to Fimia's personal e-mail account. In forwarding the e-mail, Fimia removed the `to’ and `from’ line listing Thwing as the sender and recipient, but did not remove any additional information from the e-mail. Fimia claimed she did this `to protect Ms. Thwing from potential public exposure.’ On September 19, Fimia forwarded this new e-mail to staff at the city of Shoreline, which provided it in print to Ms. O'Neill. This e-mail did not include the sender or recipient information of the e-mail from Hettrick to Thwing, nor did it include the sender or recipient information of the e-mail from Thwing to Fimia. Ms. O'Neill then asked in writing for the City to provide all information relating to the email, including how it was received by Fimia, from whom it was received, and the forwarding chain of the e-mail. Fimia found the original unaltered September 18 email from Thwing to Fimia, including the forwarding information that the e-mail had originally been sent by Hettrick on September 14, and forwarded it to the city attorney. On September 25, the City gave the O'Neills a hard copy of that unaltered complete email string, including both headers, each of which included the date and time of the message.
O’Neill v. City of Shoreline, supra. After she received the September 25 copy of the email string, Ms. O’Neill “explicitly requested” the metadata “from the e-mail’s entire chain”. O’Neill v. City of Shoreline, supra. Fimia tried to find the metadata associated
with the original e-mail from Thwing, but could not; Fimia concluded that she must have inadvertently destroyed it. Fimia asked Thwing to resend the original e-mail to her, which Thwing did on September 29. Fimia provided this e-mail, along with [its] metadata, to city staff for distribution to Ms. O'Neill. The City provided another installation of records to Ms. O'Neill on October 3, including a paper copy of the e-mail Thwing resent to Fimia on September 29 and metadata from that e-mail. The City also provided Ms. O'Neill with metadata from the identical September 18 e-mail Thwing had sent to Councilmember Janet Way, after extracting it from Way's computer. Ms. O'Neill nevertheless continued to seek all metadata associated with the e-mail string. Since Fimia had destroyed the original September 18 e-mail, the City was unable to provide Ms. O'Neill with the metadata associated with the e-mail that Thwing sent to Fimia on September 18.
O’Neill v. City of Shoreline, supra.
As the opinion notes, Ms. O’Neill then “brought suit under the PRA.” O’Neill v. City of Shoreline, supra. As I understand the suit, O’Neill argued that the metadata was a public record under the state’s Public Records Act, so she was legally entitled to it. O’Neill v. City of Shoreline, supra. The trial judge dismissed the suit and O’Neill appealed to the Washington Court of Appeals. O’Neill v. City of Shoreline, supra. The Court of Appeals held that metadata “must be disclosed under the PRA.” O’Neill v. City of Shoreline, supra (citing O’Neill v. City of Shoreline, 145 Wash. App. 913, 187 P.3d 822 (Washington Court of Appeals 2008)). Fimia and the City of Shoreline appealed this decision to the Washington Supreme Court. O’Neill v. City of Shoreline, supra.
The Supreme Court began its analysis of the issue raised by the appeal by noting that the PRA requires “[e]ach agency” to “make available for public inspection and copying all public records” unless a record falls within one of several exemption specified in the PRA or is exempt from disclosure under some other Washington statute. O’Neill v. City of Shoreline, supra (quoting Washington Revised Code § 42.56.070)). It explained that this statute is to be “liberally constructed” and its exemptions “should be narrowly construed in favor of disclosure.” O’Neill v. City of Shoreline, supra.
The Supreme Court then considered whether “the metadata associated with Thwing's original e-mail to Fimia is a public record’ subject to disclosure under the PRA.” O’Neill v. City of Shoreline, supra. It noted that the PRA defines a public record as including “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Washington Revised Code § 42.56.010(2). This statute defines a “writing” as
handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
Washington Revised Code § 42.56.010(3).
The Supreme Court then proceeded with its analysis, noting, at the outset, that this issue “has been examined previously by only one court” – the Arizona Supreme Court. O’Neill v. City of Shoreline, supra. In Lake v. City of Phoenix, the court held that since “metadata in an electronic document is part of the underlying document [and] does not stand on its own”, when a public agency “maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under [Arizona's] public records law.” Lake v. City of Phoenix, supra.
The Washington Supreme Court reached the same conclusion:
Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. Our broad PRA 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. We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure. There is no doubt here that the relevant e-mail itself is a public record, so its embedded metadata is also a public record and must be disclosed. We therefore affirm the Court of Appeals ruling that the metadata associated with Thwing's original e-mail to Fimia is subject to the PRA and must be disclosed.
O’Neill v. City of Shoreline, supra.
The Supreme Court then considered the consequences of its ruling. It noted that it was “impossible to know at this point what information is contained within the metadata associated with that original e-mail” because Fimia “deleted [it] from her computer, along with all of its associated metadata.” O’Neill v. City of Shoreline, supra. In an attempt to remedy this situation, the Supreme Court gave the City of Shoreline the opportunity to
inspect Fimia's home computer's hard drive for the requested metadata. While the City has searched Fimia's e-mail folder for the deleted e-mail and its associated metadata, the City has not inspected the hard drive of Fimia's home computer. . . . Information that must be disclosed under the PRA conceivably exists on the hard drive of Fimia's computer. If it is possible for the City to retrieve this information, the PRA requires that it be found and released to the O'Neills.
We will not yet say unequivocally that the City violated the PRA. The City still has the opportunity to search for the requested metadata on Fimia's home computer's hard drive. We note that this inspection is appropriate only because Fimia used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined. We remand the case for the trial court to give the City the chance to search for the requested metadata, and to determine whether the City has violated the PRA.
O’Neill v. City of Shoreline, supra (emphasis in the original). In a footnote, the Supreme Court explained that it was only addressing “whether the City may inspect Fimia’s home computer” if she consented to such an examination. O’Neill v. City of Shoreline, supra. It noted that it was not addressing “whether the City may inspect Fimia’s home computer absent her consent.” O’Neill v. City of Shoreline, supra.
I don’t know if Fimia consented/will consent or not, but I assume the City will try very hard to convince her to do so . . . since if the City can’t find the metadata, the trial court will decide if the City violated the PRA and, if so, what “monetary penalty” should be imposed on it. O’Neill v. City of Shoreline, supra. If you’d like to read a little more about what the penalty could amount to, check out the news story you can find here. That story also notes that the City will need “a copy of Fimia’s hard drive from four years ago.”