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Spokane, Washington 99201
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The Center for Justice is open Monday through Friday from 8 a.m. to 5 p.m., except during the noon hour and on court holidays.

Chasing the Metadata

State appeals court rules that information about information is covered by Washington’s public records law.

At a meeting of the City of Shoreline’s city council on September 16, 2006, Deputy Mayor Maggie Fimia made the first of two significant mistakes.

Fimia decided to make a public announcement about an e-mail she had received alleging that members of the Shoreline council had improperly influenced a pending zoning decision. The announcement was wrong in one key respect. The deputy mayor said the e-mail had come to her from “a Ms. Hettrick and a Ms. O’Neill.” But it really hadn’t come from either woman and one of them, Beth O’Neill, happened to be in the council audience that night. A spat was born. Lawyers and judges would be involved. The Center for Justice became involved as co-counsel to Ms. O’Neill and her husband.

The deputy mayor’s second big mistake came approximately a week later. After having rousted Ms. O’Neill’s ire with her erroneous announcement on the 18th, Fimia located the original e-mail on her home computer on the 25th. She forwarded the e-mail to the city attorney. But then she deleted the original e-mail. That was unfortunate because, on the same day, Ms. O’Neill filed her third public record’s request for the 9/18/06 e-mail and this one asked for all “metadata pertaining to this document.”

In deleting the e-mail, the deputy mayor had deleted the “metadata,” the data about the data, and specifically the detailed information about the e-mail related to the origins of its transmission and receipt.

While the annals of Washington’s public records case law are filled with heated disputes, the case of Beth and Doug O’Neill versus the City of Shoreline and Deputy Mayor Maggie Fimia has to rank among the most bitter.

For example, in between her first and second big mistakes, Fimia altered the requested e-mail to try to withhold from Ms. O’Neill the name of the person who actually sent the 9/18/06 e-mail to the deputy mayor. As one might expect, this only inspired Ms. O’Neill to pursue her right to know who’d sent the e-mail to Fimia that Fimia publicly and erroneously attributed to Ms. O’Neill.

On the other hand, the Superior Court judgment for the City of Shoreline and against the O’Neills was among the harshest decisions ever rendered by a state court against a public records plaintiff. Not only did the judge reject all of the O’Neill’s arguments, he ordered them to pay the city’s costs.

With the Division 1 Court of Appeals decision entered Monday, that will change. The City of Shoreline will have to pay costs and attorneys fees (and penalties) to the O’Neills unless the City succeeds in an appeal to the state Supreme Court. Moreover, the case will be remanded to the trial court to determine whether the original metadata on Fimia’s home computer (where the original e-mail was sent) can be recovered in order to determine whether it contains information that is different from the information already provided. If it can be recovered, and if it is different than that already provided, it must be produced to the O’Neills.

“The Court of Appeals has confirmed, once again, that government belongs to the people, not government officials,” said Center for Justice Chief Catalyst Breean Beggs. “The importance of this case is that it makes clear that one of the most essential services government can and should deliver is to provide citizens with all the information they need to evaluate the effectiveness of their government. Each time another government agency realizes this, we’ll be closer to the day when sunshine lawsuits are no longer needed.”

The key findings in the appellate court’s ruling are these:

(1) The electronic version of e-mails used by state officials, and the “metadata” associated with such e-mails are public records under the state’s public records act.

(2)Nothing in the public records act allows a public official to alter a public record in order to protect the sender of the record from public exposure.

(3)The requirements of the state’s public records act trump records retention guidelines promulgated by the Washington Secretary of State that allow for e-mails to be deleted so long as they are printed with basic information about sender and recipient and the date. Under Monday’s ruling, all the original metadata information associated with an e-mail that is a public record must be provided if it is requested.
Posted July 22nd