In today’s edition of Syracuse’s Post-Standard newspaper, there was a fascinating account of a two-year legal battle that involves issues of consent and implied consent, privacy, public records and even ownership of metadata. Yes, that right. You read it correctly — metadata. I bring this case to your attention because I believe it bears special relevance for those of us working as public relations professionals.
At the core of the case is a retired engineer whose image was used for promotional purposes in an e-mail blast sent to 2,600 subscribers to a monthly e-mail distributed by a county recycling agency. The man, whose photograph was shot by the agency’s now-retired public affairs officer, contends his image was published without his consent. But according to the agency’s legal papers, the public affairs officer informed the man that the photo might be used by the agency in the future.
The man subsequently filed a Freedom of Information request after the agency first declined to compensate him with two free passes (worth $20) to the compost facility where the photo was taken. By the way, he told The Post-Standard that he was willing to settle for one free pass. The FOI request failed to compel the agency to provide him access to an estimated 36,000 digital photographs (published and unpublished) he now sought. So, he sued after the agency said it would only provide previously published photos.
The case has now gone to the New York State Supreme Court, where it was appealed and the issue of metadata comes up. Along the way, the retired engineer decided he wanted the digital record of when, where and how each photo was made —the metadata, which one court ruled was public record. It looks like it will be up to the Court of Appeals, the state’s highest court, to finally dispose of this case since he plans another appeal after the lower court narrowly rejected his arguments based on privacy. The majority agreed with the agency that the unpublished photographs of individuals should not be considered public records.
Unfortunately, county taxpayers have borne most of the financial brunt of all this legal wrangling. The recycling agency’s lawyer says he’s already performed more than $10,000 of legal work on the case. The plaintiff is represented by a New York City attorney, who happens to be his son-in-law.