Lake v. City of Phoenix

207 P.3d 725, 220 Ariz. 472, 28 I.E.R. Cas. (BNA) 1186, 547 Ariz. Adv. Rep. 14, 2009 Ariz. App. LEXIS 10
CourtCourt of Appeals of Arizona
DecidedJanuary 13, 2009
Docket1 CA-CV 07-0415
StatusPublished
Cited by4 cases

This text of 207 P.3d 725 (Lake v. City of Phoenix) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake v. City of Phoenix, 207 P.3d 725, 220 Ariz. 472, 28 I.E.R. Cas. (BNA) 1186, 547 Ariz. Adv. Rep. 14, 2009 Ariz. App. LEXIS 10 (Ark. Ct. App. 2009).

Opinions

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 r’emand 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’ memo-randa 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 [476]*476it did not produce either do not exist or are not public l-ecords 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); Bohn 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 “[tjrue 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 Metada-ta 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 meta-data 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 informa[477]*477tion, hidden text, and comments. Id. Meta-data concepts were described in a recent ethics opinion addressing the duties of lawyers who send and receive electronic communications:

Such communications may contain metada-ta. 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/E thics/opinionview.clm?id=695. on these general descriptions of metadata, we turn to whether Lake’s request falls within the definition of a public record.

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207 P.3d 725, 220 Ariz. 472, 28 I.E.R. Cas. (BNA) 1186, 547 Ariz. Adv. Rep. 14, 2009 Ariz. App. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lake-v-city-of-phoenix-arizctapp-2009.