Page 6 - TIPJar Summer 2017

Metadata

Insight from an Industry Expert

BY
DARREN C. KAMEYA,
PENELOPE R. GLOVER
AND
JULIE LEWIS

n our technology-driven world, a California Public Records Act request
typically seeks some form of electronic communication or record
Icreated using a computer and software program. Frequently, an
agency’s response is to send an email attaching the requested record
if it is not otherwise exempt from disclosure. Public agencies must be
careful when responding to these requests. Without taking adequate
precautions, this common response may actually reveal hidden electronic
data, called “metadata.” In some instances, a requester of records may
specifically ask for metadata. If a request for metadata involves an
employee’s personal account or device, this could implicate an employee’s
privacy rights. Best practices may warrant that the public agency take an
active role in searching for the information or guiding the employee to
search his or her personal electronic device or account.

In City of San Jose v. Superior Court, the California Supreme Court looked
in part to the Washington Supreme Court for guidance on how a public
agency could establish the adequacy of a search for public records on an
employee’s personal device or account. The Court offered as an example
the Washington Supreme Court’s approach, which relies on employee
affidavits to verify that the employee searched his or her personal devices
and accounts and to explain why any records were not produced. The
California Supreme Court held that this struck an appropriate balance
between a public agency’s “responsibility to search for and disclose public
records without unnecessarily treading on the constitutional rights of its
employees.”

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