Latest metadata ruling may spark rush to close off info
After reading O’Neill v. City of Shoreline, I’m glad this commentary isn’t a public record.
In O’Neill, the Washington Supreme Court became the second state high court to hold that metadata associated with public records is subject to disclosure under open-records acts. Therefore, if this commentary were a public record, anyone would be able to see that it took me about four tries to get the lede the way I wanted it, that I frequently type “principal” when I mean “principle” and that I sometimes stop writing mid-sentence to check my fantasy football score.
Actually, that last example might be an exaggeration. I don’t think metadata reveals what I do when I stop typing. But maybe it does. Metadata, after all, is a mystery to most of us. After decisions like O’Neill, however, that might be about to change.
As described by the court in its Oct. 7 ruling, metadata is “hidden information about electronic documents created by software programs.” The Arizona Supreme Court defined it as “information describing the history, tracking, or management of an electronic document.” Metadata almost always includes information about who has accessed a document, who has edited it and where it has been stored on the computer. Depending on the word-processing program and how and when it automatically saves a document, metadata also can include changes the author made while composing the document.
E-mails have an additional set of metadata, which is stored in the e-mail’s header. While senders and recipients usually see part of what is in the header — to, from and subject, for example — e-mail headers also contain hidden information about who received blind copies, to whom the e-mail was forwarded, the date it was created and the path it followed through cyberspace. As the Washington high court in O’Neill now has made clear, just because information in a public document is hidden does not mean it is exempt from disclosure.
In O’Neill, Diane Hettrick, a private citizen, sent an e-mail in 2006 to another private citizen, Lisa Thwing. In the e-mail, Hettrick wrote:
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.
Thwing forwarded the e-mail to several people, including Shoreline Deputy Mayor Maggie Fimia and a city council member. In order to prevent Fimia from seeing who else had received the e-mail, Thwing first forwarded the e-mail to herself and then blind-copied all recipients.
During the next city council meeting, Fimia stated she had been sent a copy of an e-mail accusing the council of improper conduct. She also said the e-mail had been sent by Hettrick and O’Neill. O’Neill, who was in the audience, immediately denied authoring the e-mail and requested a copy of it. Fimia said she would provide the e-mail to O’Neill.
After the meeting, Fimia forwarded Thwing’s e-mail to Fimia’s personal e-mail account, removing the “to” and “from” lines listing Thwing as the sender and recipient. Fimia then forwarded the e-mail to city staff, who printed it and provided it to O’Neill. After seeing that the printed version did not contain any sender or recipient information, O’Neill in writing requested all information about the e-mail.
In response, Fimia found the original forwarded e-mail from Thwing, which included the information that the e-mail originally had been sent by Hettrick. The city then gave O’Neill a hard copy of the complete e-mail string.
Not satisfied, O’Neill requested in writing all metadata pertaining to Thwing’s e-mail. Fimia, however, had destroyed the original e-mail and could not provide the metadata concerning it. The city provided O’Neill with the metadata from the same e-mail that Thwing had sent to the council member, but informed O’Neill it could not provide the exact information she had requested.
O’Neill sued under Washington’s Public Records Act. The trial court dismissed the action, but the court of appeals reversed, holding that metadata must be disclosed under the PRA and noting that the metadata from Thwing’s e-mail to Fimia might be different from the metadata in Thwing’s e-mail to the council member.
After granting the city’s and Fimia’s request to review the case, the Washington Supreme Court affirmed the appellate court’s ruling. Finding that the act defined “public record” so as to encompass “virtually any record related to the conduct of government,” the court held that “an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”
In reaching its conclusion, the court cited the 2009 decision of the Arizona Supreme Court in Lake v. City of Phoenix, in which that court construed the Arizona open-records law to require the disclosure of metadata. The court in O’Neill also relied heavily on the principles that support all open-government statutes.
“Metadata may contain information that relates to the conduct of government and is important for the public to know,” the Washington court wrote. “It could conceivably include information about whether a document was altered, what time a document was created, or who sent the 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.”
That the metadata existed on Fimia’s home computer did not change its analysis, the court held.
“The City has a duty to provide records to the public that are subject to the PRA,” the court said. “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.” (Beth O’Neill’s husband, Doug O’Neill, joined the case when she appealed the trial court’s decision.)
As it applies to Thwing’s e-mail, the decision in O’Neill is hardly breathtaking. If information in a public record — hidden or otherwise — discloses who prepared, sent and received that document, that information should be released. As it is written, however, the ruling in O’Neill is not limited to these types of information. Rather, it requires the disclosure of all metadata, from all public records stored in electronic form. We therefore should not be surprised if the ruling prompts a strong reaction from government officials.
Few officials, after all, wish the public to see their first drafts of letters or e-mails or comments or revisions made by supervisors or others collaborating on a document. Disclosing metadata, however, is akin to releasing these drafts. While the PRA (and open records laws in other states) exempt from disclosure drafts of documents in which opinions are expressed or policies formulated, that limited exemption is unlikely to calm officials who every day draft and revise documents and e-mails while communicating with constituents, office holders and others within government.
One response would be legislative, for officials to seek to amend open-records laws to limit the types of metadata required to be disclosed. A second would be practical, for agencies to store fewer documents electronically. A third would be technological, for officials to use a variety of available programs to “scrub” their documents of metadata.
Of these responses, the third seems the most likely, as it would allow agencies to avoid any public debate about the issue and maintain the convenience of storing documents electronically.
Unfortunately for the rest of us, however, scrubbing documents of their metadata will forever deny the public any opportunity to see this information. Accordingly, if decisions like O’Neill are to have any lasting effect, Congress and state legislatures should amend open-records laws to specify which types of metadata must be preserved and when they must be disclosed.