It’s a Matter of "primae impressionis"

By Mimi Dionne posted 10-27-2010 20:47



I send interesting electronic records decisions to my Chiefs Trinity which is comprised of my Chief Information Officer (CIO), Chief Security Officer (CSO), and Chief Technology Officer (CTO).  Last week I sent my CIO, “O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010)”.  A case of first impression (primae impressionis), which means there’s little to no guiding precedent, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act.  A hard copy just won’t do anymore. Delicious.

As usual, my CIO and I held a meticulous technical and information management debate.

We both agree that decision is correct; however, it’s the long and winding road in which the court traveled that he challenges.  I don’t blame him. How typically Legalese, he maintains, to consider separating the metadata from the body of the email.  From a technical perspective, metadata is part and parcel to an email—it’s imbedded inside the object (I myself want more information on the limitations of the architectural environment, but that’s not disclosed).  Notice the clarification and emphasis on metadata management happened on appeal as opposed to the original decision, which ruled in favor of a hard copy printout as sufficient.  The private citizen knew better—her technical understanding was better than those of the court.  Maybe because of the lack of precedent, but more likely due to the court’s freshman understanding of metadata—the desire to be absolutely clear--the Supreme Court relied on the Arizona ruling for guidance. Also, note how the court acknowledged ways of working as an influencing factor: despite the fact that she received an unsolicited email at home, the Deputy Mayor’s private computer was reviewed for content and metadata. She had to allow it; otherwise FOIA disclosure would be called into question.

In other words, the court reviewed several records and information management point of questions that I find juicy and complex. None of these are simple issues, as you’ll see below:

  • Who owns the data?
  • Creator versus copied recipients
  • Hard copy versus electronic format
  • FOIA
  • Technical education
  • Ways of working and change management
  • Privacy claims
  • Retention management

All of these are uncomfortable, but the rigor of debate is what makes it so fun.  I look forward to the next six months. Now that we have this legal precedent…how will it be used in the future?

K&L Gates has a nice overview of the case here.

#ElectronicRecordsManagement #RecordsandInformationManagement #metadata #electronicdiscovery