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Now You See The Metadata…Now You Don’t

When is a record gone under the Right-To-Know Law [RTKL]?  According to Paint Township v. Clark, 2113 C.D. 2013 (Pa. Cmwlth., filed February 5, 2015), a record is gone when it no longer exists in the same format that would be available to agency personnel.

In this case, a township supervisor at one point had a publicly-funded cell phone.  A right-to-know request was filed for all of the content on the cell phone.   The township invoked the 30-day extension, but never responded.  The requester appealed to the Office of Open Records.  The township submitted a position statement to the OOR stating that it could not obtain records from the phone carrier, and that the cell phone had been “privatized” before the request was made.  The OOR granted the appeal, and the township then appealed to the lower court.  The lower court ordered the township to produce the records.  The township responded that all the data had been deleted, and the cell phone was reset to the factory settings when the supervisor returned the phone to the township (the supervisor kept the same cell phone number, but had his own phone).  The township was keeping the cell phone in a safe.  The lower court ordered the township to retrieve the data from the cell phone on the assumption that the phone’s “metadata” still existed somewhere, and that a computer forensics expert could find it.   The township appealed to the Commonwealth Court.

The township first argued that the lower court erred when it ordered the township to release any metadata since the request did not include “metadata.”  The Commonwealth Court determined that metadata is not distinct from electronically stored information, and that asking for “data” from a cell phone necessarily includes any metadata associated with the electronically stored information.

The township next argued that it was error for the lower court to require the township to retrieve or re-create a record that does not exist by requiring the use of computer forensics.  The Commonwealth Court agreed with the township.  The RTKL only requires an agency to provide information “in the manner in which it currently exists.”  If an agency has data in some format, then it must provide it.  However, in this case, the request came after the cell phone had been wiped.  Since there was no electronically stored information on the cell phone when the request came in, the requested information did not exist in any ascertainable format.  Whatever fragments of information may still reside inside the cell phone chip were never shown to be a record of the township.  Out of respect for the lower court that the data may not have been properly deleted, the Commonwealth Court remanded the case back to the lower court for the limited purpose of having a township employee or the township supervisor (not a forensic expert) inspect the phone again to see if any readily available or discernible data remained on the cell phone.

The last part of this case was whether the township had to produce records on the cell phone after it was privatized but used for township business and paid for in part by the township.  The answer was yes.  Just as is the case that emails on private computers being used to transact township business are public records, any phone records between the supervisor and other supervisors pertaining to township business constitute a public record.  In short, an elected official cannot privatize public correspondence.  This is the case regardless of whether the elected official is reimbursed or not by the township.  Otherwise, all public officials would conduct public business by private means and avoid the reach of the RTKL.