Elizabeth Hill [Arizona's Assistant Ombudsman, Public Access]: "Arizona is beginning to embrace the electronic world in which we conduct our public business. On October 29, 2009, in Lake v. City of Phoenix [PDF file], the Arizona Supreme Court held 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 Arizona's public records law." Seems straightforward enough, right? I am not so sure.

It is well-established that public records include electronic records created or received by a public entity in the course of conducting public business. However, in Arizona, access to electronic records has remained a gray area. Issues related to choice of format, inspection of electronic records, access to data contained in databases, redaction of electronic records, and fees for providing electronic copies of public records, simply have not been addressed by the Legislature or the courts.

Conversely, during the past couple of decades, the federal government and a majority of states have addressed access to electronic records in one way or another. In fact, upon request, the federal government and majority of states require that public entities furnish electronic records in the electronic format in which the record is maintained. Like the recent Arizona Supreme Court Opinion, the Washington Court of Appeals specifically addressed metadata and held that metadata describing the history, tracking, and management associated with email sent by a private citizen to deputy mayor was a public record within scope of the public records act. O'Neill v. City of Shoreline.

However, although Arizona's highest court tackled the issue of whether metadata embedded in an electronic document must be disclosed upon request, the opinion's simplicity raises some important questions. In an apparent effort to dispel agency concern regarding harassment and burdensome requests the Court states, "not every public records request will require disclosure of the native file. Public entities may provide paper copies if the nature of the request precludes any need for the electronic version." How will the public entity know, or otherwise determine, whether the nature of any given request precludes the need for the electronic version given the fact that persons requesting records for a non-commercial purpose are under no obligation to set forth the purpose for which copies of the records will be used? The Court's determination is problematic and seems contrary to the presumption favoring disclosure.

The Court also provides that "[p]ublic records requests that are unduly burdensome or harassing can be addressed under existing law, which recognizes that disclosure may be refused based on concerns of privacy, confidentiality, or the best interests of the state." Currently, however, the public record statutes do not address burdensome requests. Is the Court suggesting that public entities have discretion to deny access to requests it deems burdensome or harassing under the guise that compliance is detrimental to the best interests of the public entity? If so, what are the standards for denying access? This is a matter best addressed by the Arizona Legislature.

In addition, the Court's holding refers to public records maintained in an electronic format. Some have asked whether this requires access to the record in the format it is ultimately maintained or the format in which it was created. I believe it is the former. The Court did not decide when, or if, a public entity is required to retain public records in an electronic format. Indeed, electronic records may be converted to alternative formats so long as they are retained pursuant to the applicable retention and destruction schedule approved by Arizona State Library, Archives, and Public Records. Accordingly, public records should be available for inspection and copying in the format in which the record exists at the time of the request.

Thus, although Arizona is finally entering the 21st Century and addressing access to electronic records, it has a long way to go."