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Just because you can’t see it doesn’t mean it’s not a public record

Thursday, the Arizona Supreme Court will hear oral arguments in a public records case that has far reaching implications for the right of the public to know what its government is up to.

The question before the court is whether the public has the right to see hidden data, called metadata, that is contained in electronic public records. In January, Division One of the Arizona Court of Appeals said no.

As open records cases go, this one is pretty dry. It’s hard to get the public excited about whether something you can’t see is a public record. But it might be as important of a public access case as has ever been before the court. The case has generated at lot of interest with at least four friend of the court briefs filed in the case, including one from the First Amendment Coalition, which represents numerous government openness advocates including news media, private investigators and government watchdog groups (Full disclosure: I’m a FAC board member).

The case revolves around records Phoenix police officer David Lake requested from Phoenix PD in 2006. Among the records requested were the typed notes of one of his supervisors. When he got the notes, he suspected his supervisor had altered the date they were typed. He requested the metadata to determine if that were true.

The city denied the request, saying metadata wasn’t part of the public record. Lake sued and the Superior Court and later the Court of Appeals agreed with the city that metadata is not a public record.

That’s wrong.

Think of metadata as akin to the black box of a commercial airplane. When you get on an airplane, you can see the wings, fuselage, tail, engines and all of the other visible parts of the plane that make it able to fly.

But what you don’t see when the plane is flying is all of the thousands of electronic signals and switches the plane’s computers are controlling to keep the plane in the air. All of that electronic information is stored in the plane’s black boxes.

The recording devices don’t really play a role in the plane’s flying and nobody really cares that they’re there until something goes wrong. Then everybody cares.

It’s the same for metadata, though metadata do more than just record what happens to the document, such as when it’s opened or saved, they are the document: The document and the metadata are symbiotic – one can’t exist without the other.

When you’re typing something in Microsoft Word, you don’t really care that metadata is allowing you to see what you’re typing or embedding behind the scenes the electronic wizardry that makes e-mail addresses and Internet links live (all you see is they changed to blue). Until your computer crashes, then you care that there’s metadata.

In its ruling, the appellate court went to great lengths to argue that there are government records and then there are public government records. The court argued that just because metadata exists doesn’t mean they are public records. Amazingly, the appellate justices ruled that the printed version of the electronic record Lake requested was public but systemic parts of the electronic version of that record were not and therefore could be withheld.

That’s crazy. Metadata is as much a part of the document as the little sprinkles of ink on white paper created by clicking the print button. To separate the two is to not understand what they are, how they work and why they are important for the public to see.

They only way the public can keep its government honest is to know what it’s up to and hold public officials accountable for their actions.

The public has a right to honest government. How is the public to know if it’s government is honest if one of the ways to find out is made a secret by the court?

Electronic records are fungible. Seeing the metadata is a way to hold the government accountable. To keep it secret allows government officials to alter electronic versions of documents without risk of public exposure. That’s wrong.

The Supreme Court should reverse the appellate court and let us see what’s hidden but public nonetheless.

To download and read the First Amendment Coalition’s Friend of the Court brief and supporting exhibits, click on the links below:

Brief of Amici Curiae First Amendment Coalition, et al.

FAC Amicus Brief: Exhibit_A

FAC Amicus Brief: ExhibitB

Should public agencies be required to release electronic public records in their native format, to include metadata?
Yes: 60%
No: 0%
I don't know: 0%
What's metadata?: 40%
5 users voted
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