This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

A few months ago, the OOR’s Final Determination In re Scott and Janet Brunermer v. Apollo Borough, Docket No. AP 2019-0589 (June 30, 2020) held that, if requested, metadata relating to requested e-mails must be provided to a party requesting that data, even if the requester has already received copies of the e-mails themselves.

Background and Facts:

Requesters Scott and Janet Brunermer submitted a request to Apollo Borough on February 18, 2020 for copies of e-mails, along with the metadata associated with those e-mails, that were exchanged between the Solicitor for Apollo Borough and the BCO of Bureau Veritas concerning certain real property owned by the Requesters. The Borough contended that it had produced all e-mails responsive to the request, except for one e-mail dated October 23, 2019 which it claimed was exempt due to attorney-client privilege. On June 23, 2020, while the instant appeal was pending, the Borough produced this e-mail as well. However, all of the e-mails were produced in PDF format, so no metadata was provided to Requesters, even though the Borough’s affidavit showed that the Borough specifically searched for metadata.

OOR Analysis and Holding:

Because the Borough’s sworn affidavit showed that all responsive e-mails had been produced and there was no evidence of bad faith, the portions of the Requesters’ appeal relating to production of e-mails was dismissed as moot.

The request for metadata associated with the e-mails presents an entirely different issue. An agency such as a Borough is not obligated to extract metadata from its records in order to produce it; instead it may produce the metadata by producing the record “in its native format.” Slip op. at 7 (citing Davis v. Upper St. Clair Twp., OOR Dkt. AP 2011-0800, 2011 PA O.O.R.D. LEXIS 505). Here, however, the Borough produced only the text of e-mails at issue in PDF format, which did not include the metadata associated with those e-mails. Moreover, the Borough neither indicated whether the metadata was in the process of being provided nor made arguments why the metadata should be withheld. Thus, OOR granted this portion of the Requesters’ appeal, ordering production of the metadata within 30 days of OOR’s determination.

Bottom Line: The RTKL presumes all state agency records are producible public records. This presumption applies unless particular records are shown to be exempt from production under 65 P.S. § 67.305(a) (1)-(3). Here, because the Borough did not argue that the e-mail metadata was exempt, Brunermer holds only that no exemption was proven in this case. Future OOR determinations will have to address potential grounds to exempt metadata from production.