Lake v. City of Phoenix

SUPREME COURT OF ARIZONA
En Banc

DAVID LAKE, ) Arizona Supreme Court
) No. CV-09-0036-PR
Plaintiff/Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 07-0415
CITY OF PHOENIX, a political )
subdivision of the State of ) Maricopa County
Arizona; FRANK FAIRBANKS, in his ) Superior Court
official capacity; MARIO ) No. LC 2006-000835-001 DT
PANIAGUA, in his official )
capacity; JACK HARRIS, in his )
official capacity, )
) O P I N I O N
Defendants/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Jones, Judge

VACATED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
220 Ariz. 472, 207 P.3d 725 (App. 2009)

VACATED IN PART
________________________________________________________________

YEN PILCH KOMADINA & FLEMMING, P.C. Phoenix
By Caroline A. Pilch
Neil Landeen
Attorneys for David Lake

GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix
By Sandra Hunter, Assistant City Attorney
Attorney for City of Phoenix, Frank Fairbanks,
Mario Paniagua, and Jack Harris

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Paula S. Bickett, Chief Counsel
Civil Appeals Section
Attorneys for Amicus Curiae State of Arizona

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PERKINS COIE BROWN & BAIN P.A. Phoenix
By Daniel C. Barr
K. McKay Worthington
Christopher M. Schultz
Elizabeth J. Kruschek
Attorneys for Amici Curiae First Amendment Coalition
of Arizona, Inc., Society of Professional Journalists,
and Arizona Newspapers Association

STEPTOE & JOHNSON LLP Phoenix
By David J. Bodney
Peter S. Kozinets
Chris Moeser
Attorneys for Amici Curiae The Associated Press,
Gannett Co., Inc., The Reporters Committee for Freedom
of the Press, and The E.W. Scripps Company

LEAGUE OF ARIZONA CITIES AND TOWNS Tempe
By David R. Merkel, General Counsel
Attorney for Amicus Curiae League of Arizona Cities and Towns
________________________________________________________________

B A L E S, Justice

¶1 Arizona law provides that “[p]ublic records and other

matters in the custody of any officer shall be open to

inspection by any person at all times during office hours.”

Ariz. Rev. Stat. (“A.R.S.”) § 39-121 (2001). The City of

Phoenix denied a public records request for metadata in the

electronic version of a public record. We today hold that if a

public entity maintains a public record in an electronic format,

then the electronic version, including any embedded metadata, is

subject to disclosure under our public records laws.

I.

¶2 David Lake, a Phoenix police officer, filed an

administrative complaint and federal lawsuit alleging employment

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discrimination by the City of Phoenix. He also submitted a

public records request to the City, seeking notes kept by his

supervisor, Lt. Robert Conrad, documenting Lake’s work

performance. After reviewing paper copies of Conrad’s notes,

Lake suspected that they had been backdated when prepared on a

computer. Lake then requested “‘meta data’ or specific file

information contained inside . . . [Conrad’s notes] file,”

including “the TRUE creation date, the access date, the access

dates for each time it was accessed, including who accessed the

file as well as print dates etc.”1 The City denied the request,

contending that metadata is not a public record under Mathews v.

Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).

¶3 Pursuant to A.R.S. § 39-121.02, Lake filed a special

action in the superior court. He alleged that the City was

“intentionally and purposely delaying the production of certain

1
“Metadata” is “information describing the history,
tracking, or management of an electronic document.” Williams v.
Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005)
(citation omitted). Examples of metadata include “file
designation, create and edit dates, authorship, comments, and
edit history.”  The Sedona Conference, The Sedona Principles
Addressing Electronic Document Production, at 3 (Jonathan M.
Redgrave et al. eds., 2d ed. 2007), available at
http://www.thesedonaconference.org (recent publications). “The
Sedona Conference is a nonprofit legal policy research and
educational organization which sponsors Working Groups on
cutting-edge issues of law. The Working Group on Electronic
Document Production is comprised of judges, attorneys, and
technologists experienced in electronic discovery and document
management matters.” Williams, 230 F.R.D. at 643 n.8.

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public records” until they could be destroyed under records

retention laws. After a hearing, the superior court issued an

order denying jurisdiction and relief. Lake timely appealed.

¶4 The court of appeals reversed in part as to other

requests that are not the subject of this opinion, but affirmed

the superior court’s denial of production of the metadata

embedded in Conrad’s notes. Lake v. City of Phoenix, 220 Ariz.

472, 207 P.3d 725 (App. 2009). Noting that Arizona statutes do

not define the term “public record,” the court of appeals

concluded that metadata is not embraced by the common law

definition of public records in Mathews.2 Id. at 477-78 ¶¶ 12-

15, 207 P.3d at 730-31. The court also found that Arizona’s

statutory scheme distinguishes metadata “records” from “public

records.” Id. at 479-80 ¶¶ 18-20, 207 P.3d at 732-33. The

court noted that “[t]he legislature ha[d] broadly defined a

‘record’ but ha[d] chosen not to define a ‘public record,’”

instead “deferr[ing] to the courts on this issue.” Id. at 479-

2
Mathews defined a public record as: (1) a record “made by a
public officer in pursuance of a duty, the immediate purpose of
which is to disseminate information to the public, or to serve
as a memorial of official transactions for public reference”;
(2) a record that the law requires to be kept, or “necessary to
be kept in the discharge of a duty imposed by law or directed by
law to serve as a memorial and evidence of something written,
said or done”; or (3) “a written record of transactions of a
public officer in his office, which is a convenient and
appropriate method of discharging his duties, and is kept by him
as such,” whether required by law or not. 75 Ariz. at 78-79,
251 P.2d at 895 (citations omitted).
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80 ¶ 20, 207 P.3d at 732-33. The court observed that an

“enormous quantity of records” is created daily in Arizona but

not all are public records. Id. at 480 ¶ 22, 207 P.3d at 733.

Absent further legislative direction, the court concluded that a

public records request does not require production of metadata.

Id. at 480-81 ¶ 22, 207 P.3d at 733-34.

¶5 Judge Norris dissented in part, arguing that the court

had erred in focusing on whether the metadata, viewed in

isolation, fit within the definition of a public record. Id. at

485-86 ¶ 45, 207 P.3d at 738-39. The key issue, in her view,

was whether the electronic version of the document including the

metadata is a public record. Id. at 486 ¶ 45, 207 P.3d at 739.

She noted that metadata is not an “electronic orphan,” but is

instead part of the requested electronic document. Id. at 487

¶ 53, 207 P.3d at 740. Because the City never argued that

Conrad’s notes were not a public record, Judge Norris found that

“[w]hen . . . [an] electronically created document is a public

record, then so too is its metadata.” Id.

¶6 We granted review to address a recurring issue of

statewide importance. We have jurisdiction under Article 6,

Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24

(2003).

II.

¶7 Arizona’s public records law serves to “open

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government activity to public scrutiny.” Griffis v. Pinal

County, 215 Ariz. 1, 4 ¶ 11, 156 P.3d 418, 421 (2007); see also

Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351 ¶ 33, 35

P.3d 105, 112 (App. 2001) (“The core purpose of the public

records law is to allow the public access to official records

and other government information so that the public may monitor

the performance of government officials and their employees.”)

(citation omitted). A document’s status as a public record is a

question of law, which we review de novo. Griffis, 215 Ariz. at

3 ¶ 7, 156 P.3d at 420.

¶8 Consistent with the goal of openness in government,

“Arizona law defines ‘public records’ broadly and creates a

presumption requiring the disclosure of public documents.” Id.

at 4 ¶ 8, 156 P.3d at 421. The public records law, however,

does not mandate disclosure of every document held by a public

entity. Only documents with a “substantial nexus” to government

activities qualify as public records, and the nature and purpose

of a document determine whether it is a public record. Id. at 4

¶ 10, 156 P.3d at 421; see also Salt River Pima-Maricopa Indian

Cmty. v. Rogers, 168 Ariz. 531, 541, 815 P.2d 900, 910 (1991)

(noting that the public does not have the right to access

private records that are unrelated to the government agency’s

activities). Even if a document qualifies as a public record,

it is not subject to disclosure if privacy, confidentiality, or

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the best interests of the state outweigh the policy in favor of

disclosure. See Griffis, 215 Ariz. at 5 ¶ 13, 156 P.3d at 422;

Mathews, 75 Ariz. at 80, 251 P.2d at 896 (1952).

¶9 Although Arizona statutes do not define the term

“public record,” A.R.S. § 39-121.01(B) (Supp. 2008) requires

public entities and officers to “maintain all records, including

records as defined in § 41-1350, reasonably necessary or

appropriate to maintain an accurate knowledge of their official

activities and of any of their activities which are supported by

monies from the state or any political subdivision of the

state.”3 We have held that this provision supplements the

Mathews definition of public records by identifying particular

“records which are open to the public for inspection under § 39-

121.” Carlson v. Pima County, 141 Ariz. 487, 490, 687 P.2d

1242, 1245 (1984).

¶10 The court of appeals erred in concluding that “the

public records law supports a distinction between the metadata

‘records’ that Lake sought to acquire and the ‘public records’

3
Under A.R.S. § 41-1350 (2004), “records” are defined as
“all books, papers, maps, photographs or other documentary
materials, regardless of physical form or characteristics . . .
made or received by any governmental agency in pursuance of law
or in connection with the transaction of public business and
preserved or appropriate for preservation by the agency . . . as
evidence of the organization, functions, policies, decisions,
procedures,  operations or other activities of the government, or
because of the informational and historical value of data
contained therein.”
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that are accessible to the public.” Lake, 220 Ariz. at 479

¶ 18, 207 P.3d at 732. The court noted that while A.R.S. § 39-

121.01(B) broadly defines “records” that must be maintained by

public bodies, the legislature has not defined those “public

records” that are subject to disclosure under A.R.S. § 39-

121.01(D)(1). Id. at 479 ¶ 20, 207 P.3d at 732. The court

suggested that this distinction supports interpreting “public

records” more narrowly than “records.” See id. at 480 ¶ 20, 207

P.3d at 733 (noting absence of express legislative intent “to

treat ‘records’ as coterminous with ‘public records.’”).

¶11 Although we agree with the court of appeals that there

may be documents that in some sense qualify as “records” without

necessarily being public records, such a distinction cannot be

grounded in A.R.S. § 39-121.01. As we noted in Carlson, the

1975 adoption of § 39-121.01(B) “define[d] those matters to

which the public right of inspection applies more broadly.”4 141

Ariz. at 489, 687 P.2d at 1244. The legislature did not

distinguish between “records” and “public records” in

subsections (B) and (D) of A.R.S. § 39-121.01. Instead, it

identified in (B) certain “records” that qualify as “public

records.” Carlson accordingly observed:

4
Section 39-121.01(B) was amended in 2000 to include
“records as defined in section 41-1350.” 2000 Ariz. Sess. Laws,
ch. 88, § 54 (2d Reg. Sess.).

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 For purposes of inspection and access, all records
required to be made and maintained by § 39-121.01(B)
and preserved by (C) are to be available for
inspection under § 39-121 and copying under § 39-
121.01(D), subject to the official’s discretion to
deny or restrict access where recognition of the
interests of privacy, confidentiality, or the best
interest of the state in carrying out its legitimate
activities outweigh the general policy of open access.

Id. at 491, 687 P.2d at 1246.

¶12 The court of appeals properly recognized that Griffis

requires courts to first determine if a document is subject to

Arizona’s public records law when there is a “substantial

question” as to its status. 215 Ariz. at 5 ¶ 13, 156 P.3d at

422 (citation omitted). The court erred, however, by parsing

the electronic version of Conrad’s notes and focusing separately

on the metadata contained within the document. The pertinent

issue is not whether metadata considered alone is a public

record. Instead, the question is whether a “public record”

maintained in an electronic format includes not only the

information normally visible upon printing the document but also

any embedded metadata.5 Here, the City does not dispute that

Conrad’s notes are public records kept in an electronic format.

¶13 The metadata in an electronic document is part of the

5
We refer here to inherent or “application metadata,” which
is “embedded in the file it describes and moves with the file
when it is moved or copied.” The Sedona Conference, supra note
1, at 4. Our analysis does not encompass external or “system
metadata,” which may contain information about the document but
is not inherent in the document; that is, does not exist as a
part of it. The Sedona Conference, supra note 1, at 4.
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underlying document; it does not stand on its own. When a

public officer uses a computer to make a public record, the

metadata forms part of the document as much as the words on the

page. Cf. Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640,

652 (D. Kan. 2005) (noting, in discussing federal civil

discovery rules, that “metadata is an inherent part of an

electronic document.”). Arizona’s public records law requires

that the requestor be allowed to review a copy of the “real

record.” Lake, 220 Ariz. at 486 ¶ 48, 207 P.3d at 739 (Norris,

J., dissenting). It would be illogical, and contrary to the

policy of openness underlying the public records laws, to

conclude that public entities can withhold information embedded

in an electronic document, such as the date of creation, while

they would be required to produce the same information if it

were written manually on a paper public record.

¶14 We accordingly hold that when a public entity

maintains a public record in an electronic format, the

electronic version of the record, including any embedded

metadata, is subject to disclosure under our public records law.

¶15 Our decision is unlikely to result in the

“administrative nightmare” that the City envisions. A public

entity is not required to spend “countless hours” identifying

metadata; instead, it can satisfy a public records request

merely by providing the requestor with a copy of the record in

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its native format. Additionally, not every public records

request will require disclosure of the native file. Public

entities may provide paper copies if the nature of the request

precludes any need for the electronic version. Public records

requests that are unduly burdensome or harassing can be

addressed under existing law, which recognizes that disclosure

may be refused based on concerns of privacy, confidentiality, or

the best interests of the state. Cf. Griffis, 215 Ariz. at 5

¶ 13, 156 P.3d at 422 (balancing interests to determine if the

state’s privacy or confidentiality concerns outweigh the

presumption of disclosure).

¶16 We do not here decide when a public entity is required

to retain public records in electronic format. That a public

record currently exists in an electronic format, and is subject

to disclosure in that format, does not itself determine whether

there is a statutory obligation to preserve it electronically.

III.

¶17 We make a final observation regarding the superior

court’s order denying jurisdiction and relief for Lake’s special

action. Under A.R.S. § 39-121.02(A) (Supp. 2008), a person who

has been denied access to public records “may appeal the denial

through a special action in the superior court.” Thus, so long

as Lake’s special action complied with the applicable procedural

rules, the superior court lacked discretion to deny jurisdiction

11 
and was required to decide the case on its merits.

IV.

¶18 For the reasons above, we vacate paragraphs 7 through

23 of the opinion of the court of appeals and remand to the

superior court for proceedings consistent with this opinion,

including consideration of Lake’s request for an award of

attorney fees under A.R.S. § 39-121.02(B).

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
John Pelander, Justice

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