Lake v. City of Phoenix, 1 CA-CV 07-0415.

Citation207 P.3d 725,220 Ariz. 472
Decision Date13 January 2009
Docket NumberNo. 1 CA-CV 07-0415.,1 CA-CV 07-0415.
PartiesDavid 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.
CourtCourt of Appeals of Arizona

Yen Pilch Komadina & Fleming, P.C. By Caroline A. Pilch, Neil Landeen, Phoenix, Attorneys for Plaintiff/Appellant.

Gary Verburg, Office of the City Attorney By Sandra Hunter, Assistant City Attorney, Phoenix, Attorneys for Defendants/Appellees.

OPINION

BROWN, Judge.

¶ 1 David Lake appeals the superior court's order in favor of the City of Phoenix, in Lake's statutory special action to compel the City to produce documents pursuant to Arizona's public records law, Arizona Revised Statutes ("A.R.S.") sections 39-121 to -121.03 (2001 and Supp.2008).1 For the following reasons, we affirm the superior court's order in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 2 From March 2006 through November 2006, Phoenix Police Officer Lake submitted a series of public records requests to the City. In December 2006, he filed a special action in the superior court, alleging the City failed to produce the records responsive to several of his requests and intentionally delayed production of other records. He also alleged that the City intentionally withheld public records because he had filed an Equal Employment Opportunity Complaint against the City as well as a notice of claim. Lake requested an order compelling the City to promptly disclose all pertinent records and further requested his attorneys' fees and costs incurred in bringing the special action, as well as double damages pursuant to A.R.S. § 12-349 (2003). In response, the City admitted the court had jurisdiction to consider Lake's special action but denied he had been wrongfully deprived of access to public records.

¶ 3 The superior court held a status conference and ordered the parties to brief the issues. After reviewing the parties' memoranda and hearing oral argument, the court denied jurisdiction and determined that Lake was not entitled to the relief he had requested in his petition for special action. Lake timely appealed.

DISCUSSION
A. Jurisdiction

¶ 4 As an initial matter, we address the superior court's ruling that it "denied jurisdiction" of Lake's special action. Lake argues that the court did not reach the merits of his action but denied him relief because it erroneously concluded that it lacked jurisdiction to hear the matter. The court's jurisdiction was not discretionary because A.R.S. § 39-121.02(A) provides that any person who has been denied access to public records may challenge the denial through a special action in the superior court. We conclude that the court had jurisdiction to determine this matter and in fact exercised its jurisdiction by considering the merits of Lake's claim and denying relief.

B. Public Records Requests

1. Wrongful Denial of Access

¶ 5 Lake contends that the City wrongfully refused to produce public records responsive to four of his eighteen public records requests.2 The City responds that the records it did not produce either do not exist or are not public records as defined by Arizona law.

¶ 6 Whether the City wrongfully denied Lake access to public records is a question of law we review de novo. See Cox Ariz. Publ'ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993); Bolm v. Custodian of Records of the Tucson Police Dep't, 193 Ariz. 35, 38, ¶ 7, 969 P.2d 200, 203 (App.1998). A denial of access to public records is deemed wrongful if the person requesting the records was, in fact, entitled to them. Cox, 175 Ariz. at 14, 852 P.2d at 1198. We examine each of the disputed requests to determine whether Lake was wrongfully denied access to public records.

a. The Conrad Metadata Request

¶ 7 On March 24, 2006, Lake requested all notes kept by seven named lieutenants, including Lieutenant Robert Conrad, "documenting supervisory performance" between January 1, 2005 and January 1, 2006. Upon receipt of Conrad's notes, Lake suspected the notes were back-dated. In November, 2006, Lake requested the "metadata," or "specific file information contained inside the file" relating to Conrad's notes, including the "[t]rue creation date, the access date, the access dates for each time [the file] was accessed, including who accessed the file as well as print dates, etc." The City denied the request on the basis that Lake asked for a record that was not maintained by the City and was not available. The City also defended its position on the grounds that metadata is not a public record pursuant to Mathews v. Pyle, 75 Ariz. 76, 78-79, 251 P.2d 893, 895 (1952).

¶ 8 An electronic document typically contains information that is not revealed when a document is printed. This additional information is called "metadata" and "includes all the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records."3 The Sedona Conference, The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, at 80 (2005), available at htt p://www.thesedonaconference.org/content/ miscFiles/TSG9_05.pdf.4

¶ 9 "Metadata is used for a variety of purposes to enhance the editing, viewing, filing, and retrieval of Office documents." Microsoft Corp., How to Minimize Metadata in Word 2003, http://support.microsoft. com/kb/825576 (last visited Dec. 12, 2008). "Some metadata is easily accessible through the Word interface. Other metadata is only accessible through extraordinary means, such as by opening a document in a low-level binary file editor." Id. Examples of metadata that may be included in a computer document include: the user's name and initials, the company or organization name, the name of the computer, the name of the network server or hard disk where the document is saved, other file properties or summary information, non-visible portions of embedded or linked objects, document revisions, document versions, template information hidden text, and comments. Id. Metadata concepts were described in a recent ethics opinion addressing the duties of lawyers who send and receive electronic communications:

Such communications may contain metadata. Metadata is information describing the document's history, tracking, and management. Metadata may also include hidden information, such as track changes, comments, and other information. By "mining" the metadata in a document, it may be possible to identify the author of the document, the changes made to the document during the various stages of its preparation and revision, comments made by the persons who prepared or reviewed the document, and other documents embedded within the document.

State Bar of Ariz. Ethics Op. No. 07-03 (Nov.2007), available at http://www.myazbar. org/Ethics/opinionview.cfm?id=695. on these general descriptions of metadata, we turn to whether Lake's request falls within the definition of a public record.

¶ 10 Lake argues that the City wrongfully refused to provide the metadata on Conrad's notes, suggesting that the City's motive was improper. According to Lake, he reported serious police misconduct resulting in retaliation by his superiors, including Conrad, which ultimately led to Lake's demotion. Conrad eventually produced his supervisory notes. The hard-copy of the notes indicated they were authored prior to Lake's demotion. Lake asserts that the hard-copy is essentially useless, as Conrad could have easily back-dated the notes.5 Lake further contends that "[w]ithout the metadata, the public has no way of authenticating Conrad's notes to monitor the machinations of government" and that the metadata is necessary to determine if the government was "acting in a lawful and honest manner." Finally, Lake asserts that the City has "chosen to operate in a cloak of secrecy" that undermines the policy behind Arizona's public records law.

¶ 11 It is undisputed that Arizona has a strong policy of public access to and disclosure of public records. See Griffis v. Pinal County, 215 Ariz. 1, 5, ¶ 16, 156 P.3d 418, 422 (2007). "Arizona law defines `public records' broadly and creates a presumption requiring the disclosure of public documents." Id. at ¶ 8. Nevertheless, the broad definition of "public record" is not unlimited and the presumption requiring disclosure arises only after a determination has been made that a certain record constitutes a public record. Id. at 4-5, ¶¶ 10-12, 156 P.3d at 421-22. Thus, determining whether the public records law requires disclosure of a particular record involves a two-step process:

When the facts of a particular case raise a substantial question as to the threshold determination of whether the document is subject to the statute, the court must first determine whether that document is a public record. If a document falls within the scope of the public records statute, then the presumption favoring disclosure applies and, when necessary, the court can perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.

Id. at ¶ 13 (internal quotations and citations omitted).

¶ 12 Although our legislature has not defined the term "public record," Arizona courts have long recognized the following three alternative definitions: (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 "required 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,...

To continue reading

Request your trial
3 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT