When is metadata considered Brady material?

Arizona’s Supreme Court says that metadata must be disclosed under the state’s Freedom of Information Act:

Hidden data embedded in electronic public records must be disclosed under Arizona’s public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.
The Supreme Court’s unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called ”metadata.”

Metadata can show when a document was created, when it was revised, and who created or revised the document. In the Arizona case an officer who had been demoted requested metadata embedded in a supervisor’s notes, which would show whether the supervisor had back-dated the notes to before the demotion.
Whether FOIA applies to metadata is going to be determined by each state. The next question, that I’ve never heard asked, is whether Brady applies to metadata – and I think that there is no doubt that it does if the information contained in the metadata is exculpatory. For example, when an officer creates or modifies an incident report in anticipation of trial, long after the events that gave rise to the defendant’s charges, that would be information the jury needs to hear and it would be critical to cross-examination of the witness.
Would the prosecutor or police voluntarily turn over metadata? Well, no – if they are aware of an issue with a document that would help the defense they are already under an obligation to provide the information. If they’re not disclosing the issue with the document they are not going to disclose the metadata proving the issue with the document, either. Metadata will be useful only when the defense already knows or suspects that there is an issue with the document and needs the evidence to prove it. If the prosecution does not provide the information voluntarily it will take a motion to compel and possibly an in-camera review of the material by the trial judge to determine its impeachment value.
Would it be worthwhile to add a request for metadata to Brady motions, and to keep an eye out for situations where officers or other prosecution witnesses have falsified or modified documents prior to trial?

One Response to “When is metadata considered Brady material?

  • Maybe the computerized system for police records could be a good thing after all. In the proper case, metadata could certainly be beneficial in clearing up timelines, showing motive and other biased information. It sure is better than looking for the out of sequence paper document that just happened to go missing.

Leave a Reply

Your email address will not be published. Required fields are marked *