Before we post the latest press memo from the attorney general's office identifying the advisory opinions and open records/meetings decisions issued last week — which will be released on Tuesday owing to the holiday — we take a moment to comment on a significant open records decision issued on May 15.

The decision resulted from the denial of a request that was directed to the Commonwealth Office of Technology. The requester asked for "metadata."

In fact, he asked for lots of metadata. By COT's estimate, his request would require "nearly ten years of work time to complete."

The requester, Mark Wohlander, asked for "any stored metadata, for any electronic device . . . from January 1, 2017, to the present" for Blake Brickman, the governor's chief of staff, John H. Hodgson, the governor's executive director, and Thomas B. Stephens, secretary of the Personnel Cabinet.

COT successfully argued that fulfilling the request, as framed, would impose an unreasonable burden on the agency. The attorney general thus affirmed the denial on the basis of KRS 61.872(6).

But in doing so, the attorney general rejected COT's argument that metadata is information, not a record, and therefore not subject to the open records law.

His office declared — for the first time — that metadata is a public record.

The decision can be found at:https://ag.ky.gov/orom/2019/19ORD091.doc

What is "system metadata?" Both the requester and COT defined it as "information about the file which is not embedded within the file it describes but is stored externally to track file locations and store demographics about each file's name, size, creation, modification, and usage."

But Wohlander did not limit his request to system metadata. He requested "any metadata."

The AG's staff noted that those states that have addressed the application of open government laws to discrete sets of metadata associated with specific electronic files — Washington, Pennsylvania, Arizona, and New York — have determined that metadata sets are disclosable as public records.

Because metadata "exists on the drive" of the device and can be retrieved, the attorney general's staff reasoned, "this moves metadata beyond the realm of mere abstract 'information' and into the category of retained 'documentation.'" With a narrow exclusion for metadata that falls within the general definition of "software" found in the open records law, and specific exclusions therein, metadata is a public record under KRS 61.870(2).

Acknowledging that this is a vast over-simplification of the open records decision, and may unintentionally diminish its importance, it is interesting to note that in the request that appears below, the governor's office advanced the same argument — metadata is information and not a record and the request is therefore "impermissible" (?) — in an unappealed denial of a more narrowly tailored open records request submitted by MuckRock in January 2019.

Had that denial made its way to the attorney general's office in an open records appeal, that argument would have also been rejected.

It did not. It therefore remains to be seen whether any of the other arguments advanced by the governor's office, which mirrored COT's arguments — albeit more succinctly — would have been successful.

The attorney general's office broke new legal ground in 19-ORD-091, and the staff's efforts should not go unrecognized.