Probably reacting to a 2007 Superior Court decision, a bill has been introduced in the California Assembly to allow public agencies to withhold, under the California Public Records Act, metadata relating to a public record. What are metadata? To take a very simple example relevant to the Act, certain undisplayed but accessible information about the Microsoft Word version of a proposed ordinance to be adopted by the city council might point to the history of the text, when and by whom the original and different changes in the draft were added (or subtracted), when and to whom it had been circulated, etc.somewhat like a routing sheet physically stapled to a paper version but removed when publicly presented, or an e-mail tail showing the discussion thread leading up to the current message.
Where are the metadata found? As the Wikipedia entry defining the issue states:
Most programs that create documents, including Microsoft SharePoint, Microsoft Word and other Microsoft Office products, save metadata with the document files. These metadata can contain the name of the person who created the file (obtained from the operating system), the name of the person who last edited the file, how many times the file has been printed, and even how many revisions have been made on the file. Other saved material, such as deleted text (saved in case of an undelete command), document comments and the like, is also commonly referred to as "metadata", and the inadvertent inclusion of this material in distributed files has sometimes led to undesirable disclosures.
Document Metadata is particularly important in legal environments where litigation can request this sensitive information (metadata) which can include many elements of private detrimental data. This data has been linked to multiple lawsuits that have got corporations into legal complications. Many legal firms today use "Metadata Management Software", also known as "Metadata Removal Tools". This software can be used to clean documents before they are sent outside of their firm. This process, known as metadata management, protects lawfirms from potentially unsafe leaking of sensitive data through Electronic Discovery.
The new bill, AB 1978 by Assembly Member Jose Solorio (D-Anaheim), applies to technical mapping programs rather than to word documents. It would make metadata and related information exempt from disclosure as instances of computer mapping systems that are developed by public agencies and, under the California Public Records Act, need not be disclosed as public records but can be sold, leased or or licensed by the agencies for an appropriate price. This amendment appears intended to repeal much of the effect of the California First Amendment Coalitions superior court victory last year, in which San Mateo County was ordered to make public an electronic copy of its Geographic Information Systems (GIS) base map at no more than the cost of duplication.
But if the bill were to move it could be further amended to exempt documentary metadata as well, codifying the apparent position of the San Francisco City Attorneys office that city officials and departments had the option of releasing policy and other documents in pdf rather than Microsoft Word format, in order to avoid either releasing metadata or having to review them to protect sensitive information.
A court would likely conclude that . . . principles of reasonableness and cost containment that govern disclosure of public records under the Public Records Act and the Sunshine Ordinance permit the City to decline to provide to a requester metadata that is embedded in an electronic record such as a Word document. To require departments to disclose electronic records in Word format would necessitate their exhaustively searching and reviewing metadata in those records before finalizing a response to the requester. This process would entail considerable cost to the City, given the technical expertise and staff resources that would have to be devoted to it. Imposing this process on the City would contradict the City’s own policy of using computer technology to reduce the costs incurred in disclosing public records.
Even if AB 1978 confined itself to mapping data, the withholding of metadata in that context could create a precedent for later legislation affecting all government metadata.
Meanwhile Bruce Joffe, a GIS consultant who has developed a Model Data Distribution Policy for public agencies, has written an expert and articulate letter of opposition to Assembly Member Solorio, which states in summary:
Rather than clarifying the Public Records Act, your bill’s proposed paragraph would make the Act more ambiguous, confusing, mis-informed, and obstructive of the public’s right to obtain its government’s records.
The explicit intention of your proposed bill, AB 1978, as stated in your "Computer Mapping Systems Fact Sheet" is to "allow commercial interests, who are most benefited by these systems, to obtain the portion of computer mapping systems, developed by an agency, at a fee designed to offset the agencys cost of maintenance for the computer mapping system." Your bill seeks to allow public agencies to charge members of the public who may have commercial interests more for public record data than the cost of reproduction, by obscuring and confusing the distinction between "data" and "computer mapping systems" and "software."
The Public Records Act prohibits discriminating against any member of the public that requests public record data; it even prohibits the public agency from asking the requester the purpose to which the data would be used (commercial or non-commercial). It prohibits charging more than the cost of reproduction for the requested data; and explicitly prohibits an agency from recouping its cost of creating or maintaining such data. Public records are data created or collected by the government in the conduct of its mandated duties; as such, creating and maintaining such data must be borne by the government’s operations, not by the public’s right to have access to public records.
Joffe encourages others to send their own opposition lettersreflecting his critique if preferredwith copies to their Assembly and Senate representatives soon. The first hearing will probably occur in late March or early April in the Assembly Committee on Governmental Organization.