Civil Disagreement: E-mails to public officials
Posted by Bruce Ramsey
Civil disagreements, with Lynne Varner and Bruce Ramsey of the Seattle Times editorial board, is a feature of the Ed Cetera blog. Today the colleagues react to a Washington Supreme Court ruling about an email to a politician.
Bruce Ramsey: Lynne, I'll bet you disagree with me about this, because I am taking a view not popular in the newspaper business: against the application of public disclosure law.
In the case O’Neill v. Shoreline, which came down from the Washington Supreme Court today, the court decided 5-4 that a metadata header on an email is a public document if the email is, and that a city may ask to search an employee’s home computer hard disk to look for it. I might change my mind on this, but I think I am with the dissenters, who argue that it carries public disclosure too far into the realm of the personal and private.
This case begins in Shoreline with a woman named Diane Hettrick. In September 2009, she sent out an email to several people saying that her friend Beth O’Neill wanted to get out the word about favoritism in a land-use dispute. From what I gather, Hettrick did not send the email to the city government. It was a private email—at least, it was then. One of the recipients, either directly or indirectly, was Lisa Thwing, the head of the Shoreline Republicans. She forwarded a copy of it to the home email address of Maggie Fimia, a Democrat who was then Shoreline’s deputy mayor. Fimia brought it up in a public meeting, which made the email a document of public interest.
Fimia referred to it as being from Hettrick and O’Neill. O’Neill stood up and said she hadn’t written it, and demanded to see a copy of it. A day or so later she was given a paper copy, but with the visible header, showing the original sender and forwarders, omitted. She asked for that, and awhile later, got it. Then she asked for the metadata header—the part of the email you can’t see unless you call it up. It shows the history of the document, if you know how to read it, which I don’t. Here is a bit of metadata from one of my emails:
Received: from exprod8og114.obsmtp.com (exprod8og114.obsmtp.com [18.104.22.168]) by smtp2.seattletimes.com with ESMTP id
A bunch of emails may be the same, but if they are delivered to different mailboxes, the metadata header is a bit different. And the metadata header on a copy will be different from the original. O’Neill was given the metadata header of a similar email that had been received by Councilwoman Janet Way. Also Thwing resent the email to Fimia and O’Neill was given a copy of the metadata header from that. But the original email was gone. Fimia had deleted it. She took her computer into the city and its people looked in the email folder, but could not find it.
O’Neill sued the city, demanding the original metadata header, citing the Public Records Act. The issue went to court, and the trial court sided with the city. O’Neill appealed, and the Appeals Court sided with O’Neill—and now, by one vote, the state Supreme Court has done the same. Writing for the court, Justice Susan Owens said Fimia had “used her personal computer for city business” and that the email had become a city document. She wrote, “We give the City the opportunity to inspect Fimia’s home computer hard drive for the requested metadata.”
The decision says, however, “We do not address whether the city may inspect Fimia’s home computer absent her consent.” But the ruling seems to imply that it has that authority.
Justice Gerry Alexander wrote the dissent. In it he says the case, which is about some computerese on one email, “has grown all out of proportion.” He allows that he is no computer expert, and searches for analogies from an earlier time. He offers one in Footnote 4: the metadata header is like “an envelope that once contained a previously disclosed letter.” Would the Court go to all this trouble for an envelope? “I think not,” he writes.
Owens rests her judgment on the all-encompassing language of the Public Records Act, a statute passed by initiative in 1972. Alexander rests his on the state constitution, adopted in 1889, particularly Article 1, Section 7, which declares, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
“Authority of law is a search warrant,” he writes.
I’m with Gerry.
Lynne Varner replies: Bruce, I"m as conflicted about this as the court's 5-4 vote shows justices to be. The reach of public disclosure laws rests on a pin head - in this case, a metadata header.
I agree with the court's narrow majority that metadata associated with public records is subject to disclosure under the Public Records Act. My instinct, and belief in the public's right to know when it comes to the government they pay for, says anything connected to a public record should fall within the scope of public information.
Metadata, basically "data about data" is information - albeit hidden within electronic documents, that could be useful when viewing the document. It can identify not just the author(s) of a particular document, but all of the parties who viewed it or were involved in its dissemination. Tracing the metadata from a government computer to a private one was appropriate if the medtadata proved the documents were essentially the same - one simply missing pertinent information. A request to see a government email should be viewed as a request to see every aspect of the document, including its metadata.
This issue traveled quite a distance from what I believe was essentially a zoning matter involving an illegal rental in a neighborhood. But I think it ended up in the right place. Chime in everyone.
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