Lake v. City of Phoenix

• Decision Date: 29 October 2009
• Docket Number: No. CV-09-0036-PR.,CV-09-0036-PR.
• Citation: 222 Ariz. 547,218 P.3d 1004
• Parties: David LAKE, Plaintiff/Appellant, v. CITY OF PHOENIX, a political subdivision of the State of Arizona; Frank Fairbanks, in his official capacity; Mario Paniagua, in his official capacity; Jack Harris, in his official capacity, Defendants/Appellees.
• Court: Arizona Supreme Court

218 P.3d 1004

222 Ariz. 547

David LAKE, Plaintiff/Appellant, v. CITY OF PHOENIX, a political subdivision of the State of Arizona; Frank Fairbanks, in his official capacity; Mario Paniagua, in his official capacity; Jack Harris, in his official capacity, Defendants/Appellees.

No. CV-09-0036-PR.

Supreme Court of Arizona, En Banc.

October 29, 2009.

Yen Pilch Komadina & Flemming, P.C., by Caroline A. Pilch Neil Landeen, Phoenix, Attorneys for David Lake.

Gary Verburg, Phoenix City Attorney by Sandra Hunter, Assistant City Attorney, Phoenix, Attorney for City of Phoenix, Frank Fairbanks, Mario Paniagua, and Jack Harris.

Terry Goddard, Arizona Attorney General by Paula S. Bickett, Chief Counsel Civil Appeals Section, Phoenix, Attorneys for Amicus Curiae State of Arizona.

Perkins Coie Brown & Bain P.A. by Daniel C. Barr K. McKay Worthington, Christopher M. Schultz, Elizabeth J. Kruschek, Phoenix, Attorneys for Amici Curiae First Amendment Coalition of Arizona, Inc., Society of Professional Journalists, and Arizona Newspapers Association.

Steptoe & Johnson LLP By David J. Bodney Peter S. Kozinets Chris Moeser, Phoenix, 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 by David R. Merkel, General Counsel, Tempe, Attorney for Amicus Curiae League of Arizona Cities and Towns.

OPINION

BALES, 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 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 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 479-80 ¶ 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 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 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' 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:

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...