In National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, the United States District Court for the Southern District of New York held that metadata maintained by an agency as part of an electronic record is presumptively producible under the Freedom of Information Act ("FOIA") unless the agency demonstrates the metadata is not producible.  2011 WL 381625 (S.D.N.Y. 2011).

The plaintiff made FOIA requests on several federal agencies to determine whether local jurisdictions were permitted to "opt-out" of a federal program aimed at coordinating efforts of federal immigration agencies and local police agencies.  In response, the agencies produced several thousand pages of responsive documents as .pdf files which were unsearchable, stripped of all metadata and indiscriminately merged all documents together.  The plaintiff sought an order requiring the defendant agencies to produce all metadata and produce documents in their native format. 

Noting there is surprisingly little case law defining the standard of documentary productions under FOIA, the court reviewed the requirements of Rule 34 of the Federal Rules of Civil Procedure to determine whether metadata should be included in FOIA requests.  Citing the Sedona Conference® Principles, the court found that "it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record."  However, the court likewise found that the plaintiffs never made a specific request for metadata.  Nonetheless, the court held that certain metadata is an integral or intrinsic part of an electronic record and where it is maintained by an agency, it is presumptively reproducible under FOIA unless the agency demonstrates it is not readily reproducible.  In doing so, the court noted that "whether or not metadata has been specifically requested- which it should be- production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading of ESI." 

For a full copy of the opinion, click here.