Lake v. City of Phoenix (1/13/2009)

January 27, 2009

Arizona Court ofAppeals Division One Holds That Metadata Is Not a Public Record for Purposes of Arizona’s Public Records Law.

Plaintiff David Lake, a Phoenix Police Officer, submitted a series of public records requests to Defendant City of Phoenix, including a request for metadata for documents he believed had been back-dated.  In December 2006, Lake filed a statutory special action to compel the City to produce certain records, including the metadata and alleging that the City intentionally delayed production of other records.  Lake requested attorneys’ fees incurred in bringing the special action and for double damages pursuant to A.R.S. § 12-349.  The trial court denied special action jurisdiction and determined that Lake was not entitled to relief.  Lake appealed. 

The ArizonaAppeals Court affirmed in part and reversed in part.  It first addressed whether metadata is a public record, explaining that the presumption of disclosure in Arizona only applies after a determination has been made that a record is a public record.  Citing Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991), and Matthews v. Pyle, 75 Ariz.76, 251 P.2d 893 (1952), the Court held that metadata is not a public record because it is not:  (1) a record made by a public officer pursuant to duty, the purpose of which is to disseminate information to the public or to serve as a memorial of official transactions; (2) a record required or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial of something written, said, or done; or (3) a record of transactions of a public officer in his office, whether required by law or not. 

The Court rejected Lake’s argument that metadata is a public record because it is electronic evidence that would be discoverable in litigation, noting that there is no authority or legislative history suggesting that Arizona’s public records law is co-extensive with evidentiary rules.  Moreover, the Court explained that the plain language of the public records statutes foreclosed a finding that all records maintained by public entities are public records. 

The Court then turned to three other public record requests Lake had made that had been denied by the City.  It first ruled that the City had improperly withheld a police report located on the PACE computer management system.  The Court rejected the City’s argument that state law prohibited searches of the PACE system for public records requests, explaining that a public record does not become immune from production simply by virtue of the method the City employed to catalogue it, and it also held that A.R.S. § 41-1750(Q) did not support the City’s argument.  The Court next held that the City improperly withheld certain e-mails for which it was the custodian of records.  Finally, the Court held that the City improperly withheld documents concerning a shooting investigation, rejecting the City’s contention that a draft of a report concerning an ongoing investigation is not a public record.             

The Court remanded the matter to the trial court to determine whether Lake was entitled to attorneys fees for the wrongful denial of the three records requests.  The Court, however, also held that the trial court did not abuse its discretion when it rejected Lake’s request for attorneys’ fees for the City’s failure to promptly produce other records, finding that the evidence suggested that the records were promptly produced.

Judge Norris concurred in part and dissented in part.  She disagreed with the majority’s holding that metadata is not a public record, arguing that metadata is an essential component of a public record created on a computer, and also that metadata should be considered a public record because it would serve the interests of the public records law.

Judge Brown authored the opinion; Presiding Judge Timmer concurred; Judge Norris concurred in part and dissented in part.