Federal judge orders release of document metadata

Christine Beckett | Freedom of Information | Feature | February 9, 2011

For the first time, a federal court has ruled that metadata -- information related to the history, tracking or management of an electronic document -- must be released if requested under the Freedom of Information Act. A federal judge in New York City made the ruling Monday in National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency.

National Day Laborer Organizing Network requested numerous records in electronic form from the U.S. Immigration and Customs Enforcement Agency. After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata. The court held that this was unacceptable.

The two major issues in this case were the format the records were provided in and the lack of metadata, such as file dates, names, attachment data and other identifying information. Regarding the first issue, the court agreed with the plaintiff's claim that the format was completely unusable because the more than 3,000 pages were not searchable and not defined -- there was no way to discern the beginning and end of individual records. The court repeatedly criticized the government for its refusal to provide the records in a usable form, at one point referring to the government's claims as "lame."

Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit, said that metadata is essential when receiving an electronic record. "The metadata shows that the government is not hiding anything when they provide an electronic record. You want to make sure you have everything." Patel insisted that, without metadata, there is no way for a requester to ensure that key parts of records are not being withheld from an electronic record.

"It goes to the heart of FOIA," Patel said. "You can't allow the use of an electronic format to prevent [requesters] from getting information."

While agreeing that metadata should be specifically asked for, Judge Shira Scheindlin held that because the National Day Laborer Organizing Network asked for the electronic records in their "native format" -- meaning in their original electronic format, which maintains metadata -- that was sufficient to include the metadata in the request. As a result, the court held that the Immigration and Customs Enforcement Agency must provide the requested records in a usable, electronic format, including the metadata.

"Metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not 'readily producible,'" the court held.

Sheindlin also chastised the Immigration and Customs Enforcement Agency for providing the records in an unsearchable format, with different types of records lumped together with no discernable organization, and for providing only PDF images of records that are stored electronically. The court held that these files should be given to the plaintiffs in separate files.

"The Government would not tolerate such a production when it is a receiving party, and it should not be permitted to make such a production when it is a producing party. Thus, it is no longer acceptable for any party, including the government, to produce a significant collection of static images of [electronically stored information]," the court said.

At several points, the court noted that the government also violated discovery rules, which dictate that the record holder cannot alter the form of a record in a way that makes it "more difficult or burdensome for the requesting party to use the information efficiently." While no court has held that discovery rules govern FOIA, the court said in a footnote that the "fundamental goal underlying both . . . is the same" and "common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation."

In reaching its conclusion, the court recognized, based on caselaw and legal definitions of metadata, that "it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record." However, the Freedom of Information Act does not specifically address metadata and "[n]o federal court has yet recognized that metadata is part of a public record," the court said.

While the court held that there should be a presumption that metadata is producible under FOIA, it conceded that not all metadata may fall under FOIA's "readily producible" standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency. The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records.

The court, while at times openly scolding the the Immigration and Customs Enforcement Agency's behavior, did not save its ire entirely for the government. "[O]nce again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to 'meet and confer,' 'cooperate' and generally make every effort to 'communicate' as to the form in which [electronically stored information] would be produced."

"[L]awyers are all too ready to point the finger at the courts . . . for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations . . . This can only be achieved through cooperation and communication," the court continued.

It is unclear if the U.S. Attorney will appeal the ruling. When asked, the office said it "does not comment on internal decisions."