On January 13, 2009, an intermediate Arizona appeals court panel rejected a request to compel the government to produce metadata associated with a government- created word processing document under Arizona’s public records statute. In a 2-1 decision, the panel held that metadata is not a public record and is thus not subject to production under the statute.
A Phoenix police officer, who had filed an Equal Employment Opportunity Complaint against the city requested under the statute any notes created by his superiors that pertained to his job performance. After receiving a copy of one evaluation that he suspected had been altered or back-dated, the officer requested metadata that would indicate when and by whom the document was created and modified. The city refused, and he filed suit.
Two of the three judges ruled in favor of the city on this issue, holding that metadata is not a public record and that the officer was therefore not entitled to it under Arizona’s public records statute. A.R.S. §§ 39-121 to - 121.03.
Noting that “not all documents found within the custody or possession of a public official are public records,” the court examined whether metadata fell under any of three categories delineated by Arizona precedent, including (1) records made by public officers in pursuance of certain duties; (2) records which the law requires or necessitates that the government keep; or (3) written records of transactions of a public officer in his official capacity.
The court held that metadata does not fall under the first category because it was not made “in pursuance of a duty,” like the actual document, given that it is generated “only as a by-product of his use of a computer.” In a similar vein, it held that metadata does not fall under the second category of public records because the supervising officer was not “required by law” to create or maintain it, and his only obligation was to memorialize his notes. Though it found the issue to be a closer call, the court held that metadata does not fall under the third category because the “transaction” at issue was not the creation of the metadata; instead, it held that the transaction consisted solely of the recordation of the supervisory notes relating to the officer.
The dissenting judge argued that metadata cannot be separated from the actual document, analogizing the refusal to produce it to redacting the “to,” “from,” and other addressing information from a memorandum that might be requested under the statute. The judge noted that by producing only a paper print out, the city kept from public inspection “the full content” of the notes, including valuable information that could determine the authenticity of the document.
Importantly, the majority distinguished a statutory request for public records from requests for metadata during litigation discovery. The issue before the court was solely whether the government entities in Arizona are required to produce metadata under the state’s public records statute; this case does not apply to requests for information from private parties during discovery.