Doug v. The City of SHORELINE

• Decision Date: 07 October 2010
• Docket Number: No. 82397-9.
• Citation: O'Neill v. City of Shoreline, 240 P.3d 1149 (Wash. 2010)
• Parties: Doug and Beth O'NEILL, individuals, Respondents, v. The CITY OF SHORELINE, a municipal corporation, and Deputy Mayor Maggie Fimia, individually and in her official capacity, Petitioners.
• Court: Washington Supreme Court

240 P.3d 1149

Doug and Beth O'NEILL, individuals, Respondents, v. The CITY OF SHORELINE, a municipal corporation, and Deputy Mayor Maggie Fimia, individually and in her official capacity, Petitioners.

No. 82397-9.

Supreme Court of Washington,En Banc.

Argued March 16, 2010.

Decided Oct. 7, 2010.

Flannary Pasieka Collins, Ian Richard Sievers, Shoreline, WA, Ramsey E. Ramerman, Everett, WA, for Petitioners.

Michele Lynn Earl-Hubbard, Christopher Roslaniec, Allied Law Group, L.L.C., David M. Norman, Seattle, WA, Michael G. Brannan, Law Office of Michael G. Brannan, Edmonds, WA, for Respondents.

Jamew Walter Beck, Gordon Thomas Honeywell, Tacoma, WA, amicus counsel for Allied Daily Newspapers of Washington, Inc. & Washington Newspaper Publishers Association.

Alan D. Copsey, Office of the Attorney General, amicus counsel for State of Washington.

Gary T. Smith, John Benjamin Kerr Schochet, Seattle City Attorney's Office, Suzanne Marie Skinner, Attorney at Law, Mercer Island, WA, amicus counsel for Washington Association of Municipal Attorneys.

William John Crittenden, Patrick Denis Brown, Attorney at Law, Seattle, WA, amicus counsel for Washington Coalition for Open Government.

OWENS, J.

¶ 1 This case allows us to consider whether metadata is a public record that must be disclosed under the Public Records Act (PRA), chapter 42.56 RCW. This is a matter of first impression before this court. We affirm the Court of Appeals and hold that metadata associated with public records is subject to disclosure under the PRA.

FACTS

¶ 2 On September 14, 2006, Diane Hettrick (a private citizen) wrote an e-mail to Lisa Thwing (also a private citizen) and possibly others. The relevant portion of the e-mail stated:

Hi folks,

My dear friend, Beth O'Neill has asked me to pass along information about our dysfunctional Shoreline City Council. Beth and some other folks have been working hard battling certain issues regarding an illegal rental in their neighborhood. What should be a legal and zoning issue has gotten mired into the politics of our 32nd District Democrats and certain City Council folks are playing favorites with their own political supporters.

Ex. J at 21.

¶ 3 On September 18, Thwing forwarded this e-mail to Shoreline Deputy Mayor Maggie Fimia, City Councilmember Janet Way, and others. The e-mail that Fimia received did not list any other recipients that Thwing had sent it to, as Thwing had first forwarded the e-mail to herself and blind carbon copied all other recipients. As a result, only Thwing's name and e-mail address showed up as recipients on the e-mail header that Fimia received.

¶ 4 At a public meeting of the Shoreline City Council (Council) on September 18, Fimia stated that she had been sent a copy of an e-mail allegedly sent by “a Ms. Hettrick and a Ms. O'Neill” accusing the Council of improper conduct. Clerk's Papers (CP) at 20. Ms. O'Neill immediately made an oral request for that e-mail and denied authoring it. Fimia stated that she “would be happy to share the e-mail with Ms. O'Neill.” Id. When she returned home from the council meeting, Fimia forwarded the original Thwing e-mail to Fimia's personal e-mail account. In forwarding the e-mail, Fimia removed the “to” and “from” line listing Thwing as the sender and recipient, but she did not remove any additional information from the e-mail. Fimia claimed that she did this “in order to protect Ms. Thwing from potential public exposure.” CP at 21. On September 19, Fimia forwarded this new e-mail to staff at the city of Shoreline (City), which provided it in print to Ms. O'Neill. This e-mail did not include the sender or recipient information of the e-mail from Hettrick to Thwing, nor did it include the sender or recipient information of the e-mail from Thwing to Fimia. Ms. O'Neill then asked in writing for the City to provide all information relating to the e-mail, including how it was received by Fimia, from whom it was received, and the forwarding chain of the e-mail. Fimia found the original unaltered September 18 e-mail from Thwing to Fimia, including the forwarding information that the e-mail had originally been sent by Hettrick on September 14, and forwarded it to the city attorney. On September 25, the City gave the O'Neills a hard copy of that unaltered complete e-mail string, including both headers, each of which included the date and time of the message.

¶ 5 After receiving the second disclosure on September 25, Ms. O'Neill explicitly requested the metadata from the e-mail's entire chain, including “[all] metadata pertaining to” the e-mail that Thwing had sent Fimia. Ex. G. Metadata is most clearly defined as “data about data” or hidden information about electronic documents created by software programs. Jembaa Cole,When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal and Ethical Consequences of the Failure to Remove Metadata, 1 Shidler J.L. Com. & Tech. ¶ 7 (Feb. 2, 2005), available at http:// www. lct journal. washington. edu/ Vol 1/ a 008 Cole. html. Fimia attempted to find the metadata associated with the original e-mail from Thwing, but could not find it; Fimia concluded that she must have inadvertently destroyed it. Fimia asked Thwing to again resend the original e-mail to her, which Thwing did on September 29. Fimia provided this e-mail, along with the e-mail's metadata, to city staff for distribution to Ms. O'Neill. The City then provided another installation of records to Ms. O'Neill on October 3, including a paper copy of the e-mail that Thwing resent to Fimia on September 29 and metadata from that e-mail. The City also provided Ms. O'Neill with metadata from the identical September 18 e-mail that Thwing had sent to City Councilmember Janet Way, after extracting it from Way's computer. Ms. O'Neill nevertheless continued to seek all metadata associated with the e-mail string. Since Fimia had destroyed the original September 18 e-mail, the City was unable to provide Ms. O'Neill with the metadata associated with the e-mail that Thwing sent to Fimia on September 18. Ms. O'Neill brought suit under the PRA. The trial court reviewed the motions and affidavits, dismissed the action, and awarded costs to the City and deputy mayor.

¶ 6 Ms. O'Neill and her husband Doug O'Neill appealed, and the Court of Appeals found that metadata must be disclosed under the PRA. The Court of Appeals ruled that metadata from Thwing's original e-mail to Fimia was a public record and that the O'Neills are entitled to it. O'Neill v. City of Shoreline, 145 Wash.App. 913, 935, 187 P.3d 822 (2008). It stated that the City never provided the O'Neills with the exact requested public record. Id. In particular, the Court of Appeals stated that the name, e-mail address, and Internet protocol address on the metadata that the O'Neills received, among other things, might be different. Id. Since the Court of Appeals thought that the header information on the two e-mails might be different, it ruled that the O'Neills were entitled to the metadata from Thwing's original e-mail to Fimia. Id. It then remanded for the trial court to determine whether Fimia's hard drive contained metadata associated with the September 18 e-mail, whether the City had violated the PRA by not releasing covered public records, and if so, the appropriate monetary penalty under the PRA. Id. at 936, 187 P.3d 822. The Court of Appeals also awarded attorney fees to the O'Neills and decided that a public records request can be decided based on affidavits alone. Id. at 938-40, 187 P.3d 822. The City and Deputy Mayor Fimia petitioned for review, which we granted. O'Neill v. City of Shoreline, 208 P.3d 554 (2009).

ISSUES

¶ 7 1. Is e-mail metadata a public record that must be disclosed under the PRA?

¶ 8 2. Does a request to see an e-mail inherently include a request to see metadata?

¶ 9 3. Did the Court of Appeals err by granting attorney fees?

¶ 10 4. Can a public records request be decided on affidavits alone?

STANDARD OF REVIEW

¶ 11 We review challenges to agency actions under the PRA de novo. City of Federal Way v. Koenig, 167 Wash.2d 341, 344, 217 P.3d 1172 (2009) (citing Soter v. Cowles Publ'g Co., 162 Wash.2d 716, 731, 174 P.3d 60 (2007)).

ANALYSIS

I. Metadata is Subject to the PRA

¶ 12 The Court of Appeals ruled that metadata from Thwing's original September 18 e-mail to Fimia was a public record and that the O'Neills are entitled to it. O'Neill, 145 Wash.App. at 935, 187 P.3d 822. Metadata, while not defined in standard English dictionaries, has been defined in various other sources. “Metadata is quite simply data about data, or hidden statistical information about a document that is generated by a software program.” Cole, supra, at ¶ 7 (footnote omitted). “ ‘Metadata’ is ‘information describing the history, tracking, or management of an electronic document.’ ”

Lake v. City of Phoenix, 222 Ariz. 547, 548 n. 1, 218 P.3d 1004 (2009) (quoting Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D.Kan.2005)). Examples of e-mail metadata “include, among about 1,200 or more properties, such information as the dates that mail was sent, received, replied to or forwarded, blind carbon copy ... information, and sender address book information.” Working Group on Elec. Doc. Retention & Prod., The Sedona Conference, The Sedona Principles: Best Practices Recommendations And Principles For Addressing Electronic Document ProductionN 3 (2d ed. June 2007), available at http:// www. thesedona conference. org/ content/ misc Files/ publications_ html? grp= wgs 110. Metadata from electronic files can include “ ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ ” Williams, 230 F.R.D. at 646 (quoting Working Group on Best Practices for Elec. Doc. Retention & Prod., The Sedona Conference, The...