Last Thursday, October 7, 2010, the Supreme Court issued a decision on the Public Records Act (PRA) that emphasizes the challenges local jurisdictions face when responding to requests for electronic documents under our state’s expansive “sunshine” law. 

In O'Neill v. City Of Shoreline, the Supreme Court dragged the PRA into the digital age and held that metadata (hidden information embedded within an electronic document) is subject to the PRA when it is specifically requested by a party.  Thus, when a person requests emails and accompanying metadata, as was the case in O’Neill, printed copies of emails are not adequately responsive.  The jurisdiction is required to provide the email in its original electronic form. 

O’Neill  highlights a particular difficulty of complying with requests when employees and elected officials often use personal computers and email accounts when conducting business.  The requested email in that case was deleted from an elected official’s work computer, but it was possible that it was stored on the hard drive of the elected’s home computer.  The majority opinion makes clear that work-related emails and documents stored on home computers or sent from personal email accounts are nevertheless public documents subject to disclosure under the PRA.  Otherwise, it would be easy for public officials and employees to circumvent the PRA. 

As noted in the dissenting opinion this conclusion raises significant questions about a local government’s authority to search home computers that elected officials or employees use for work purposes without that person’s consent.  The majority avoided the question, noting in a footnote that the court assumes the elected official consented to the search.  However, it is not hard to imagine a scenario in which an elected or an employee uses a home computer or personal email account to conduct business but refuses to provide access in response to a public records request.  Ostensibly, the local jurisdiction is on the hook for the failure to provide the public document and may need to take further legal action to obtain access to the personal computer.

The case, like other recent PRA cases, emphasizes the leverage that the PRA gives to citizens over local governments and state agencies.  The law is rigid and there are many opportunities to make costly technical mistakes.  The ease with which someone can inadvertently delete an electronic document with a simple keystroke can complicate things.  Moreover, the  number of documents that may be responsive to a request has grown exponentially to include emails, tweets, blogs, that may be stored on devices and drives outside of the jurisdiction’s control, including home computers and outside servers.  Many jurisdictions have hired full time staff whose sole responsibility is to respond to public records requests.  Especially in this current economic climate, it is hard for cash-strapped jurisdictions to shoulder these growing costs of responding to requests for public records.  For these reasons, watch for a legislative push in the coming months to reduce the burden the PRA puts on local jurisdictions.