Q: I have anonymously requested from various San Francisco agencies, under the San Francisco Sunshine Ordinance and California Public Records Act, full email and calendar records, specifically in the original electronic format the city agencies hold them. While some agencies do indeed produce their emails/calendar entries in the native electronic formats like .msg, .eml, .ics, etc. which preserve all the headers, attachments, and metadata, more often, agencies “print” the records to PDF format. This causes a loss of a lot of the information except some very standard headers that such printouts have. I believe this is an improper withholding of portions of public records both under the stricter San Francisco Sunshine Ordinance and the regular Public Records Act, and a violation of both laws’ requirement that records be provided in the format they are held (if so requested) and that exemptions be justified.
Should I be able to get San Francisco public agencies and/or California public agencies in general to provide me emails in the native electronic formats, where they only redact the specific portions/headers that are in fact legally exempt?
A: While we are unable to provide specific legal advice through this hotline service, we can provide some general background information that you might find helpful. I ran a quick case law search to see whether any courts have ruled on the issue of metadata in relation to a public records act request. While it appears that there are no reported California court decisions on the issue, courts in Arizona, Washington, and New York have held that, unless an exemption applies, metadata is part of the public record and subject to disclosure. See Lake v. City of Phoenix, 218 P.3d 1004 (Ariz. 2009); O’Neill v. City of Shoreline, 240 P.3d 1149 (Wash. 2010); Irwin v. Onondaga County, 895 N.Y.S.2d 262 (N.Y. 2010).
You might also be interested in taking a look at The People’s Business: A Guide to the California Public Records Act, which was published by the League of California Cities, an association of California city officials. The Guide includes two sections on metadata and provides the following “practice tip”: “Agencies that receive requests for metadata or requests for records that include metadata should treat the requests the same way they treat all other requests for electronic information and disclose nonexempt metadata.”
Any analysis of what a California court might do when faced with this legal question is necessarily fact specific and, unfortunately, we do not have the resources to provide you with an in-depth analysis through this Hotline.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.