Charles Tobin is a Partner and Andrew Oja an Associate in our Washington, D.C. office
Refusing to accept an agency's "lame excuse" for providing an unsearchable cache of records, a federal court has ruled – for the first time – that the government must produce metadata if requested under the Freedom of Information Act (FOIA).
The court in New York City, in the recent decision in National Day Laborer Organizing Network v. U.S. Immigration and Customs Agency, sharply criticized the government for fulfilling a FOIA request by producing "static images stripped of all metadata and lumped together without any indication of where a record begins and ends." The decision draws heavily on the federal rules governing lawyers' obligations in providing electronic discovery in other types of litigation.
A coalition of public advocacy groups sued the government under FOIA seeking information about the Secure Communities program, a program operating in 38 states in which federal, state and local governments collaborate in enforcing federal immigration law. The plaintiffs made the FOIA request to determine whether local jurisdictions can opt-out of the program and block federal officials from using local police records to identify people for deportation.
FOIA requires that if requested, federal agencies must make documents available "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." In a follow-up email to their requests, the plaintiffs specifically asked for the documents to be produced as separate files, with spreadsheets in their native electronic format. The agencies instead produced an unsearchable PDF document of indiscriminately merged records stripped of metadata.
"Lame Excuse" Not Acceptable
The government blamed the plaintiffs for the format of the production. The agencies argued that the plaintiffs had never asked for the metadata. Judge Shira A. Scheindlin sharply rebuked that argument:
"Given the Plaintiffs' July 23 e-mail and Defendants' tardy productions, I cannot accept this lame excuse for failing to produce the records in a usable format." (emphasis in original)
While she noted that no controlling FOIA precedent exists, the judge held that federal discovery rules provide clear guidance of a lawyer's obligations when confronted with requests for electronically stored information (ESI). She added that "common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation." The discovery rules therefore "surely should inform highly experienced litigators as to what is expected of them when making a document production in the twenty-first century."
While acknowledging that the government may be unable to produce all types of metadata, the court announced a new standard that heavily favors FOIA requesters making requests for ESI:
"[M]etadata maintained by the agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not 'readily producible.'" (emphasis in original)
The decision will provide a boost for FOIA requesters seeking production of electronic records in formats that permit searching, collating and other means of electronically sorting data.
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