e-Lessons Learned

We’re all familiar with the saying “Don’t judge a book by its cover.”  Perhaps you’ve fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register.  At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe.  Doing some research on the book would’ve saved you some money, right?

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right.  After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity.  Lake is told that he can’t get the metadata.

Dead-end?  Nope.  If there’s a will there’s a way.  By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City.  The City failed to produce several records related to his request and delayed the production of other records.  So what does one do?  Sue. Duh!

Lake initiated a special action against the City alleging it withheld pertinent records from disclosure with an improper motive.  Why would they do such a thing?  According to Lake, the City was trying to cover up information relevant to the EEOC he filed after being demoted.  The world doesn’t revolve around you, Lake.  While you might not be on the devil’s side, we shall see the law most certainly is.  In this action, Lake seeks to compel the City to produce all relevant records requested, to cover the fees and costs associated with the special action and to cough up double damages.  The Superior Court held that it lacked jurisdiction to hear the matter and that Lake was not entitled to the relief sought.

Issue #1: Jurisdiction

The Arizona Court of Appeal reversed the Superior Court’s holding on jurisdiction because A.R.S. § 39-121.02(A) states that any person who is denied access to public records has the right to challenge that decision in the Superior Court, This means that the Superior Court did in fact have jurisdiction to hear Lake’s complaint.  Whether Lake was entitled to the relief sought for the wrongful denial of his public records requests, however, is the focus of this review.

Issue 2: Public Records Request

Request #1: Supervisory Notes

Lake contends that four of his eighteen public records requests were denied by the City.  Lake wanted all notes kept by certain lieutenants from a specific time period, which documented supervisory performance.  The City responded positively and met Lake’s request with hard copies of the electronic documents containing the notes.   Lake, do you have everything your little heart desires?  No!

Suspecting the notes made by Lieutenant Conrad were backdated, Lake requested metadata, or specific file information contained inside the file, for each document to confirm its authenticity.  Lake believed the City wrongfully denied his request for the metadata on Conrad’s notes and had provided him with a hard-copy of the notes which seemed to have preceded his demotion.  Such notes were useless in assessing whether Lake’s demotion for shady reasons.   If you’re demoted after filing an EEOC complaint against your employer, you have to wonder if this was retaliation.  Oh Lake.  You are such a smarty pants! So Lake requested the metadata associated with Conrad’s notes, which would provide him authenticating information about the electronic document’s creation date, access date, and other useful details not revealed in the hard-copy document.  The City denied Lake’s request.

The Court of Appeal noted that Arizona law broadly defines ‘public records’ and adopted a presumption in favor of disclosure to honor public records requests, but only after a document has been classified as a public record does this presumption kick in.   Metadata falls outside of the three alternative definitions of a ‘public record’ that are recognized by Arizona courts.  According to Matthews v. Pyle, 251 P. 2d 893, 895 (1952), metadata must be (1) made by the officer pursuant to a duty (2) required to be created by law or (3) a written record of the officer’s transactions.  Because Lake’s request for metadata does not fall under any one of these definitions, he would not reap the benefits of the presumption. Though federal courts have been allowing parties to discover metadata, this Court explicitly states that there isn’t “any authority suggesting that Arizona’s public records law is co-extensive with evidentiary rules in a litigation context.  Nor do we find any evidence of legislative intent to construe Arizona’s public records law so broadly as to mean that if a document is discoverable in connection with a lawsuit, then it must also necessarily be disclosed by an agency under the public records law.”  (Full Case PDF, p.12)  The Court’s message was clear: The public records law makes a distinction between metadata records and public records.

So without the metadata, Lake and everyone else would have to take the supervisory notes for face value, though the documents may have been backdated or altered.  Desperate times call for desperate measures.  How else can Lake enter the shady underworld behind his demotion?   Sue some more and hope for the best.

Request #2: Police Reports

Lake made another request to the City, which was for any aggravated assault reports or other police reports listing some Lieutenant as victim.  Lake advised the city to use the PACE system to find the records, but the City said “No.  This is not allowed under Arizona law.”  The City argued that because the PACE system was linked to databases providing criminal justice information, using PACE to conduct a public records search was against the law because it would provide information to unauthorized individuals.  One would think the Phoenix Police Department’s Records and Identification Bureau or anything that says ‘Police’ would actually know how to abide by the law, and not just claim to follow it.  Not!  The Court of Appeal held that a police report that is undoubtedly a public record cannot be withheld from production by virtue of the method employed by the City to catalogue the document.  Oh, Lake, you’re as stubborn as an ox!  You finally got a piece of the pie!

Request # 3: Police Emails

The Court of Appeals also held that the City, in part, wrongfully denied Lake’s third public records request, which was for emails between Commander Campbell, Lieutenants Soha and Conner about Lake.  Because the city retains emails for thirty days, and since Soha had transferred to another job more than thirty days ago, Soha’s emails were deleted, and so the City rightfully denied Lake’s request.  But wait Lake!  God has answered your prayers.   The Court found that the City wrongfully refused Lake’s request for Campbell’s emails because Campbell had left his job only ten days before Lake’s request.  That means that the City still had Campbell’s emails.  That also means Lake is going to get those emails.  In analyzing the issue, the Court noted that Arizona’s policy of disclosure was not outweighed by confidentiality concerns.

Request #4: Documents on an Investigation

Lake also challenged the City for denying his request for documents regarding an unfinished investigation of a shooting.   The Court held that absent concerns over confidentiality, privacy and the best interests of the state, Arizona Supreme Court precedent has made it clear that reports of ongoing police investigations are generally not exempt from Arizona’s public records law, and as such, disclosure is required.  I gotta give it to you Lake.  You are quite the hunter.

Issue 3: The City is Moving Slow

So Lake complains that the City was slow and that it violated A.R.S. § 39-121.01(E) when it failed to produce the permitted public records promptly.  Arizona courts have understood “prompt” to mean “quick to act” or “without delay.”   The Court of Appeal reviewed the Superior Court’s decision on this matter, and held that the City met its burden when it explained that given the extensive nature of Lake’s requests, the documents were produced promptly.  Sorry, Lake, but you’re fast-paced ways should be saved for NYC.  Prompt is excruciatingly slow by our standards.

Issue 4: Attorney’s Fees For Wrongful Denial

Alas, we get to the moolah.  Lake wants attorney fees and other legal costs associated with this action but he must look to A.R.S. § 39-121.02(B) which requires Lake to prove that he substantially prevailed in his public records requests.   Because the Court of Appeals reversed a portion of the Superior Court decision, it remanded the case back to the Superior Court to decide whether or not Lake substantially prevailed in his special action and thus entitled to attorney’s fees and costs incurred in connection to the special action.

It pays to investigate. If someone says “No” you have to wonder if there is more going on that you don’t see.  If you take anything away please make it this: Don’t judge a book by its cover.  You might get the short end of the stick, and “foolish” stamped on your forehead.

Noura is a 3L at Penn State-Dickinson at University Park and is a Smith College alumna.  Upon graduation, she would like to practice entertainment law or work for a legal consulting firm.

Article posted on June 14, 2009 at 11:41 PM |              More... 
Tagged as: Accessibility, Discoverability, Metadata.
View more articles implicating: Document Custodians, Employees, Government Officials
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