Ask your IT department if they are holding onto any old tapes, hard drives or computers. After you read this post, their answer may turn your hair grey!
Neighborhood Alliance of Spokane County v. County Of Spokane is a significant public records ruling from the Washington Supreme Court addressing the reach of the Washington Public Records Act in the digital age. You should read it, even if you never practice in Washington. It has been on my list to blog about ever since it was published, but it is so jam-packed with important information, it is hard to pick what to write about.
Neighborhood Alliance was seeking the metadata for an electronic file to determine when a document was created. Spokane County responded to the record request using metadata from a copy of the file, created when an employee was issued a new computer. Unless done properly, the mere act of copying a computer file will change that metadata. That is what happened here, causing the County to respond with an incorrect creation date.
That mistake might not have been critical if the County had not made a second error. After the employee was given the new computer, the old computer was simply placed in storage with the hard drive that contained the original file with the accurate metadata. When the County responded to the record request, it never checked that hard drive, so the correct file information was never produced. The Washington Supreme Court found that to be a violation of the Public Record Act.
All of this may have been innocent; computer hard drives get replaced every day. So what should government bodies do to prevent this from happing? Before a hard drive is replaced, check it for files that would be responsive to pending public record requests or relevant to pending or reasonably anticipated litigation. If such files are found, forensically sound copies of those files must be created for production or preservation. Once that process is complete, and the content of the old drive has been copied to the new drive, the old drive should immediately be destroyed or wiped of all data in a manner reasonably calculated to prevent recovery of its contents.
You can access a summary of the case on The Local Open Government Blog. The Supreme Court of Washington Blog links to a podcast discussion of the case with Greg Overstreet of Allied Law Group, the firm that represented newspaper interests as amicus in the case.