Metadata May Not Be a Public Record in Maryland

As of October 1, 2011, Maryland will permit custodians of public records to scrub unprivileged metadata from those records, apparently at the requestor’s cost, before producing those records under the State analog to the Freedom of Information Act.  The statute, SB 74, Chapter 536 of the 2011 Laws of Maryland, amends the State Public Information Act (“PIA”).

Chapter 536 initially broadens the scope of the PIA by providing that, with enumerated exceptions, the custodian of a public record “shall provide an applicant with a copy of the public record in a searchable and analyzable electronic format” if: it is available; requested in that format; does not disclose confidential or protected information; and, is otherwise disclosable.  As such it has been correctly applauded. M. Poinski, “Md. makes strides towards government transparency,” The Daily Record (Apr. 20, 2011).

The statute, however, proceeds to state that a custodian “may remove metadata from an electronic document before providing the electronic document to an applicant. . . .” [emphasis added].  It provides two acceptable methods for scrubbing metadata: 1) using a software program or function; or, 2) conversion to a different searchable and analyzable format.

Removable metadata is statutorily defined as “information, generally not visible when an electronic document is printed, describing the history, tracking, or management of the electronic document, including information about data in the electronic document that describes how, when, and by whom the data is collected, created, accessed, or modified and how it is formatted.”

Under the statute, metadata does not include a spreadsheet formula, a database field, an externally or internally linked file, or a reference to an external file or hyperlink.

A number of Courts have taken a different approach to metadata under public records acts.  For example, in Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009), the Court wrote:

“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. . . . 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.”

And, the Washington Supreme Court recently concluded:

“Metadata may contain information that relates to the conduct of government and is important for the public to know. It could conceivably include information about whether a document was altered, what time a document was created, or who sent a document to whom. Our broad [Public Records Act] 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. We agree with the Supreme Court of Arizona that an electronic version of a record, including its embedded metadata, is a public record subject to disclosure.”

O’Neill v. City of Shoreline, 170 Wn.2d 138, 147-48 (2010).

In a nuanced decision that reviewed the federal Freedom of Information Act, as well as State court decisions, the Honorable Shira A. Scheindlin concluded: “By now, it is well accepted, if not indisputable, that metadata is generally considered to  be an integral part of an electronic record.”  National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 U.S.Dist.Lexis 11655 *13 n. 26 (S.D.N.Y. Feb. 7, 2011).  Judge Scheindlin concluded that several state courts have uniformly held “ in the context of state freedom of information laws, that metadata is indeed a part of public records and must be disclosed pursuant to a request for public records.”   The court proceeded to define which specific metadata fields must, in the context of the FOIA request at issue, be included in the government’s response.  Accord Matter of Irwin v Onondaga County Resource Recovery Agency, 72 A.D.3d 314, 895 N.Y.S.2d 262 ( 2010)(“We are therefore constrained to conclude that the subject ‘system’ metadata, which is at its core the electronic equivalent of notes on a file folder indicating when the documents stored therein were created or filed, constitutes a ‘record’ subject to disclosure under FOIL. . . . We do not, however, reach the issue whether metadata of any other nature, including ‘substantive’ and ‘embedded’ metadata, is subject to disclosure under FOIL.”).

Under these authorities, unless metadata comes within a recognized PIA exception, e.g., privilege, trade secret, etc., that metadata is generally part of a public record and should be produced.  The Maryland statute, however, apparently permits a custodian to “scrub” or remove metadata, even if that metadata is neither privileged nor confidential.

This could produce an anomaly. For example, while a State employee’s signature could not be redacted from a paper public record, the statute permits the custodian to delete metadata showing the identity of the person who created the document even if the information is neither confidential nor privileged.

It may be important for the applicant to learn that a document was created by X although signed by Y.  For example, “[a]nalysis of hidden information in the so-called Iraq ‘dodgy dossier’ showed, among other things, the names of the four civil servants who worked on it.”  See M. Ward, The Hidden Dangers of Documents, BBC News: Technology.  Metadata identifying a document’s author was important in the arrest of the “BTK killer”:

“Dennis provided details related to the murders in letters that he sent to the police and local news stations. The trail went cold until the police examined a floppy disk sent to a Fox affiliate (KSAS-TV) in 2004. The floppy disk contained a deleted Microsoft Word document file. The investigators recovered the file and examined the metadata, which identified ‘Dennis’ as the author and the ‘Christ Lutheran Church’ as the software licensee.  Using this information, the investigators were able to locate the Christ Lutheran Church where Dennis was a Deacon. Combined with other evidence collected, the BTK killer was finally captured and convicted of these terrible crimes.”

J. Rowe, Pinpoint Labs Blog (Aug. 5, 2008). And, to give another example, metadata purportedly showed that one of Microsoft’s annual reports was prepared on a Macintosh. S. Rosenberg, “Microsoft’s annual report: Made on Macintosh,” Oct. 12, 1999.

The statute appears to allow the government to impose the cost of “scrubbing” on the requestor, even if the custodian is stripping non-privileged, non-confidential information from a public record, stating: “The official custodian . . .  may charge any reasonable fee for making or supervising the making of a copy, electronic copy, printout, or photograph of a public record.”  The Fiscal Note states:  “A custodian of a public record is authorized to remove metadata from an electronic document before providing it to an applicant, and a custodian may charge an applicant a reasonable fee for making or supervising the making of an electronic copy.”  Thus, the requestor may have to pay the cost of removing information that the requestor was otherwise entitled to receive.

While the statute commendably addresses part of the transition to electronic public records, and properly ensures that electronic records are covered by the PIA, it also appears to permit a custodian to remove metadata a from a public record, apparently at the applicant’s cost, even if that metadata is wholly benign, not privileged, and not confidential.  Chapter 536 contains a “sunset provision” and will expire on September 30, 2013.

POSTSCRIPT:  June 17, 2011, Order

On June 17, 2011,  the Court in National Day Laborer issued the following order:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

The Court’s order postdated the posting of this blog.

ADDITIONAL RESOURCES:

Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 547 (D.Md. 2007)(“Another way in which electronic evidence may be authenticated. . .  is by examining the metadata.”).

P. Kozinets, “Access to Metadata in Public Records: Ensuring Open Government in the Information Age,” 27 Communications Lawyer 1 (ABA Jul. 2010) (“Metadata might not be pertinent to every public records request, but it should be supplied when requested, absent a demonstrably good reason for closure.”).

D. Degnan, “Accessing Arizona’s Government: Open Records Requests for Metadata and Other Electronically Stored Information After Lake v. City of Phoenix,” 3 Phoenix L.Rev. 69 (2010).

Annot., “Disclosure of Electronic Data Under State Public Records and Freedom of Information Acts,” 54 A.L.R.6th 653 (2010).

K. Oakes, “Matters subject to disclosure, generally,” 76 C.J.S. Records §116.

M. Chumber, ed., “Access to Government in the Computer Age: An Examination of State Public Records Laws” (ABA 2007), 2(“Because [the government agency] and its administrators choose, for purposes of administrative expediency, to computerize the raw data, does not make the data any less a public record.”), quoting Bd. of Educ. of Newark v. New Jersey Dept. of Treasury, 653 A.2d 589 (N.J.Ct.App.Div. 1995).

This entry was posted in Commercial Litigation, ESI. Bookmark the permalink.