[EDRM Editor’s Note: The opinions and positions are those of Michael Berman. This is the last in a three part series, with Part I here and Part II here.]
This is Part III of a three-part blog comparing disclosure of public records under the Maryland PIA and civil discovery under the Maryland Rules.
THE ANTIQUATED PIA EXCEPTION FOR METADATA
When it comes to metadata, however, civil discovery principles and the PIA part company. The Maryland PIA gives the custodian of public records the unilateral and unlimited power to scrub metadata, without any showing of cause. Further, it appears that the custodian may bill the requestor for the cost of dumbing down the public records. A better solution would be to require, at a minimum, discussions with the requestor regarding the production or scrubbing of metadata. Often, a requestor will not need or want metadata. However, there may be times where metadata is important to the use or interpretation of the public records.There was “metadata” in the Declaration of Independence. See Thomas Jefferson’s “Metadata” in the Declaration of Independence. One article suggests that: “If the Declaration of Independence were written today, it likely would be composed on a computer, with the drafters’ words stored in an electronic file as a series of ones and zeros. That file likely would contain a host of data about the document, including information about its author and editors; dates created, accessed, edited, e-mailed, or printed; file name, size, and type; file storage or location; and possibly revisions or comments, especially if the drafters used ‘track changes.’” Peter S. Kozinets, “Access to Metadata in Public Records: Ensuring Open Government in the Information Age,” Communications Lawyer, July 2010, at 1. If that document were requested under Maryland’s PIA, all of that information could be scrubbed.
When it comes to metadata, however, civil discovery principles and the PIA part company. The Maryland PIA gives the custodian of public records the unilateral and unlimited power to scrub metadata, without any showing of cause. Further, it appears that the custodian may bill the requestor for the cost of dumbing down the public records.
Michael Berman, Maryland’s “Sunshine Law”: Cooperation, Searches, Metadata, and Costs (Part III)
Metadata is Discoverable in Civil Litigation
Historically, in civil litigation there was a presumption against production of metadata. Civil litigators were concerned that production of hidden data could have negative consequences.That changed after an influential Sedona Conference paper. W. L. Wescott, III, “The Increasing Importance of Metadata in Electronic Discovery,” 14 Rich. J. L. Tech. 10 (2008).Today, metadata is routinely exchanged in civil discovery and the Maryland Rules permit a requesting party to specify the form requested. The reason is important:
Metadata sheds light on the origins, context, authenticity, reliability and distribution of electronic evidence, as well as providing clues to human behavior. It’s the electronic equivalent of DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate.
Craig Ball, Microsoft Word – Moving Past Data about Data.doc (craigball.com) (2005), 2.
Further, there is no advantage to producing a scrubbed, static document. Craig Ball, The Case for Native, I Swear | Ball in your Court (craigball.net) (2020).
Under the PIA, Custodians Have the Unilateral Right to Scrub All Metadata
Under the Maryland PIA, metadata is not a “public record.” In fact, the Maryland Attorney General’s Manual states that metadata can be removed “regardless of whether the metadata is otherwise exempt from disclosure.” PIA Manual at 6-3. The Attorney General wrote that “[t]he invisible nature of metadata has made it a matter of concern to custodians.” Id. Although the PIA broadly defines “public records” that are subject to inspection upon request, it also states that:
A custodian may remove metadata from an electronic document before providing the electronic document to an applicant by: (i) using a software program or function; or (ii) converting the electronic document into a different searchable and analyzable format.
GP §4-205(c)(3).
The PIA defines “metadata” as
…information, generally not visible when an electronic document is printed, describing the history, tracking, or management of the electronic document, including information about data in the electronic document that describes how, when, and by whom the data is collected, created, accessed, or modified and how the data is formatted.
GP §4-205(a)(1).
“Metadata” does not include “(i) a spreadsheet formula; (ii) a database field; (iii) an externally or internally linked file; or (iv) a reference to an external file or a hyperlink.” GP §4-205(a)(2).[1]Within that definition, the custodian of public records has the absolute right to scrub all metadata before disclosing a public record. This provision permits removal of “MAC” metadata – modified, accessed, or created data – as well as the author’s name, editing time, and other non-confidential, and sometimes important, information.The Attorney General’s Manual states that the legislative goal was to provide the requestor with a usable electronic copy “and, at the same time, to provide some comfort to a custodian who wishes to avoid the inadvertent production of exempt materials in invisible metadata.” Id. at 6-4.While the statute and the Attorney General’s Manual are silent on this point, it appears that a public agency is also permitted to bill a requestor for the time and cost of scrubbing metadata. See, Baltimore Police Dept., 2023 WL 5616318 at *2 (discussing redaction). Thus, a requestor often receives only an edited, partial, and “dumbed down” version of the public record. And, if the requestor can be billed for the costs of the scrubbing process, the requestor must pay more, while receiving less.
The Unilateral Right to Remove Metadata Should be Reconsidered
I suggest that a better mousetrap would, at a minimum, be to make a decision to remove metadata a topic for discussion among the requestor and the public agency. Metadata may be important to some requestors and unimportant to others. However, giving the agency unilateral power to decide does not appear to be consistent with the purposes of the sunshine law. For example, the Kozinets article explains:
“Metadata also can reveal the influence of special interests on official conduct. Illustratively, in 2004, California’s then attorney general, Bill Lockyer, circulated a letter castigating peer-to-peer file-sharing software as ‘a dangerous product.’ Examination of the properties section of the document showed that one ‘stevensonv’ had written it. Vans Stevenson, a senior vice president of the Motion Picture Association of America, which vigorously opposed peer file sharing, later said that he had provided some input regarding the letter but had not written it.”
In short, the metadata showing the author was important. Another example is the infamous “dodgy dossier” that led up to Britain’s involvement in the Iraq war. “Analysis of hidden information in the so-called Iraq ‘dodgy dossier’ showed, among other things, the names of the four civil servants who worked on it.” M. Ward, BBC NEWS | Technology | The hidden dangers of documents (Aug. 18, 2003). “Hidden data in the UK government’s ‘Dodgy Dossier,’ the document that helped propel the country into war, revealed a student paper was the source of the document.” S. Smull, Hidden Content In Your Documents: What You Don’t Know Can Be Dangerous (ccbjournal.com)(Oct. 4, 2011).If that dossier had been produced under the MPIA, the metadata could have been scrubbed.Maryland’s metadata exception was added to the PIA almost a decade ago. Acts 2014, c. 94, §2 (effective Oct. 1, 2014). “While common sense does not change, common human experience does. A technical marvel of an earlier time may become the everyday tool of the contemporary person.” Johnson v. State, 457 Md. 513, 517 (2018)(significance of GPS data). Times have changed: “In today’s world of electronically stored information, it makes no sense to convert electronic formats to TIFF images considering the information that’s lost and the severe burden and added expense so-called TIFF+ productions impose on requesting parties.” Craig Ball, 2020-08-25_anonymized-ball-declaration.pdf (wordpress.com).It is often not difficult to produce metadata. For example, Microsoft Outlook can easily export emails to a PST file, with metadata. It is difficult to imagine why the author, as shown in the metadata of a Microsoft Word or Excel document, is not a disclosable public record. The same is true of “MAC” metadata. Why should a custodian be permitted to remove the “date created” from a public record? However, given the complexity of State and local government, as well as limits on resources, this should not be a “one size fits all” question. Metadata could be important to a requestor. EXIF data might show where, when, and how critical photographs were taken and if they were modified. However, a custodian can remove it. “Metadata can verify the authenticity and integrity of a public record, reveal what officials knew about critical actions or decisions and when they knew it, and render intelligible vast storehouses of government data that would otherwise be useless when separated from their metadata.” Kozinets, “Ensuring Open Government in the Information Age,” Communications Lawyer, July 2010, at 1Or, metadata might be unimportant to others. In many PIA requests, the requestor may seek only a few documents and may not need metadata for, for example, ingestion into a litigation review platform. Similarly, metadata may be unnecessary in a request for public policy documents or legislative histories. Further, context may be a factor. Requestors, custodians, and government entities, ranging from State to local government, all have varying levels of sophistication and information technology systems, in addition to differing needs. A requestor may lack the tools to review metadata.Given the many variables, instead of unilateral and unlimited power to scrub metadata, it may be reasonable to make the production of metadata – and cost sharing – negotiable in response to public records requests. That is what is done in civil discovery. It would, however, undoubtedly raise overburden concerns among government agencies that are struggling with tight budgets and limited personnel.However, this suggestion should not necessarily overburden public agencies. While the authorities and statutes are far from uniform, many other States consider metadata part of a public record. For example, “embedded metadata is an inherent part of a public record maintained in an electronic format….” Silverman v. Arizona Health Care Cost Containment Sys., 532 P.3d 762, 766 (Ariz. Ct. App. 2023). “[A]n electronic version of a record, including its embedded metadata, is a public record subject to disclosure.” Thurura v. Washington State Dep’t of Corr., 15 Wash. App. 2d 1047 (2020), quoting O’Neill v. City of Shoreline, 170 Wn.2d 138, 147, 240 P.3d 1149 (2010). “When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page.” Lake v. City of Phoenix, 222 Ariz. 547, 550, 218 P.3d 1004, 1007 (2009).Naturally, if metadata contains substantive information that cannot or should not be disclosed under a PIA request, that metadata is not part of the disclosable public record. However, most metadata is computer generated and should not present that issue. For example, it appears unlikely that metadata that “describes how, when, and by whom the data is collected, created, accessed, or modified and how the data is formatted” – the metadata that may be scrubbed under GP §4-205(a)(1) – presents a significant risk of improper disclosure.
Metadata can verify the authenticity and integrity of a public record, reveal what officials knew about critical actions or decisions and when they knew it, and render intelligible vast storehouses of government data that would otherwise be useless when separated from their metadata.
Kozinets, “Ensuring Open Government in the Information Age,” Communications Lawyer, July 2010, at 1Or.
WAIVER OR APPORTIONMENT OF COSTS
The Maryland Supreme Court has spoken definitively and recently regarding cost waiver requests under the PIA. Baltimore Police Dep’t v. Open Just. Baltimore, 2023 WL 5616318 (Md. Aug. 31, 2023):
For more than 40 years, the Maryland Public Information Act (the ‘MPIA’ or the ‘Act’) has allowed records custodians, in certain circumstances, to grant requests for waivers of fees to search for, prepare, and produce records sought under the Act. The current version of the MPIA’s fee waiver provision states, in part, that an official custodian may grant a requested fee waiver if, ‘after consideration of the ability of the applicant to pay the fee and other relevant factors, the official custodian determines that the waiver would be in the public interest.’ Md. Code Ann., General Provisions (‘GP’) § 4-206(e) (2019 Repl. Vol.)…. For the purpose of acting on an applicant’s request for a fee waiver under the MPIA, the Act vests official custodians with discretion to determine which factors are relevant to a public interest determination (in addition to the applicant’s ability to pay and whether the public would benefit from disclosure of the requested records). The official custodian also has discretion to balance all relevant factors and determine whether it would be in the public interest to waive some, all, or none of the fees to comply with a public information request. After concluding that analysis, if the custodian determines that it would be in the public interest to grant a full or partial waiver of the fees, the custodian has no additional discretion to deny such a waiver.
Baltimore Police Dep’t v. Open Just. Baltimore, 2023 WL 5616318 (Md. Aug. 31, 2023).
In civil discovery, the general rule is that each party bears its own costs. However, Md. Rule 2-403 (protective orders), provides that, on motion, a court “may enter any order that justice requires to protect a party or person from … undue burden or expense,” including “that the discovery may be had only on specified terms and conditions, including an allocation of the expenses….”While the factors considered differ, both the PIA and the discovery rules permit cost shifting or waivers where factually appropriate. And, as noted above, because there is a mutual duty to cooperate, if parties negotiate whether to produce metadata, that could be a factor in any fees charged and cost waiver discussions.
[1] For a discussion of hyperlinked documents in civil discovery, see “Modern Attachments,” ESI Protocols, & Second Chances.
