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Comparing: F. How are social media postings and messages treated?

Alabama

We know of no request for social media postings and messages under the Alabama Public Records Law, but there is no reason for that form of record to be treated any differently from any other form, especially since access to computer records has already been established in this State. See Birmingham News Co. v. Peevy, 21 Media L. Rep. (BNA) 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993).

Alaska

The Public Records Act defines the term “public records” to mean “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics. …” AS 40.25.220(3).  There are no reported cases at this time dealing with social media postings and messages, but there is no reason to believe they would be treated differently than e-mails, see section [State Law on Electronic Records] III.D above. Whether they are public records should depend primarily on whether they relate to public business and more specifically, whether they are records “developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency.” AS 40.25.220(3).

Arizona

Not addressed.

Arkansas

There is no statutory or case law addressing this issue, but the FOIA defines a “public record” to include “electronic or computer-based information.” Ark. Code Ann. § 25-19-103(5)(A).

California

There are no reported cases under the CPRA addressing this issue.  While the message itself might be public through other means, the data residing on an agency’s computers pertaining to the time spent engaging in social media and the sites visited on the public’s time, arguably, pertains to the public’s business and is thus a public record.

Colorado

No case law yet on this issue.  Likely to be treated the same as e-mail, above.

Connecticut

No case law on this issue.

Delaware

The Act does not specifically address social media postings, but "public records" includes all information "regardless of the physical form or characteristic…."  29 Del. C. § 10002(g).

District of Columbia

Not specifically addressed.

 

Florida

A city council member is subject to the public records provisions of Chapter 119 when the member “is publicly posting comments relating to city business” or his or her public duties on privately owned and operated websites or blogs.  Op. Att’y Gen. Fla. 08-07 (2008).  “The individual council members who create the public documents through the posted comments and emails would be responsible for ensuring that the information is maintained in accordance with the Public Records Law and the policies and retention schedule adopted by the city.”  Id. 

The Attorney General has also determined that the placement of material on a city’s Facebook page “would presumably be in furtherance of” a municipal purpouse and “in connection with the transaction of official business.”  Op. Att’y Gen. Fla. 09-19 (2009).  Such material would presumably be subject to the public records provisions of Chapter 119, but the determination would have to be made based on the definition of “public record” in section 119.11 on a case-by-case basis.  Id.  Whether the Facebook pages of any persons who are “friends” with the City constitute public recordsm “would depend on whether the page and the information contained therein was made or received in connection of the transaction of official business by or on behalf of a public agency.”  Id.   

Georgia

Because the Act by its terms applies to "computer based or generated information" social media postings and messages are presumptively subject to the Act. O.C.G.A. § 50-18-70 (a).

Hawaii

There is no statutory or case law addressing this issue.

Idaho

(This section is blank. See the point above.)

Illinois

A social media site or social media postings are subject to disclosure if the site or the posting have been prepared by or for, or have been or are being used by, received by, or is in the possession of, or under the control of any public body.  5 ILCS 140/2(c). 

Indiana

There is no statutory or case law addressing this issue.

Iowa

There is no specific statutory provision covering social media, and there are no reported cases.

Kansas

No applicable law.

Kentucky

Social media postings and messages that are “prepared, owned, used, in the possession of or retained by a public agency,” are subject to the ORA because the ORA includes all documentation “regardless of physical form or characteristics.” Ky. Rev. Stat. 61.870(2). However, for practical purposes, public agencies may not retain such messages unless they are required to do so under their document retention schedules. Document retention schedules, which are determined by the Kentucky Department of Libraries and Archives, vary by agency and can be found at: http://www.kdla.ky.gov/recmanagement/stateschedule.htm.

Louisiana

No specific provision, but under the Act, social media postings and messages should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

Maine

So long as the postings or messages were “received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business.”  1 M.R.S.A. § 402(3).

Maryland

There is no statutory or case law addressing this issue.

 

Michigan

Not specifically addressed.

Minnesota

See above.

Mississippi

No special treatment.

Missouri

There is no case law on this issue.

Montana

No statutory or case law on this issue.  Presumably they would be treated like e-mail messages.

Nebraska

Social media postings and messages are not treated in the public record statutes.

Nevada

There is no statutory or case law addressing the issue

New Hampshire

Because the Statute defines “information” include “data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form,”  RSA 91-A:1-a,IV, social media postings would be covered.  The content of the posting would determine whether it would have to be disclosed.

Massachusetts

Presumably they may be public records if created or received by any officer or employee of any governmental unit.  “Public record” is “broadly defined to include all documentary materials or data created or received by any officer or employee of any governmental unit, regardless of physical form or characteristics.” SPR Bulletin 1-99, “Electronic mail” (revised and reissued May 21, 2003), at ¶ 2 (emphasis added). Moreover the Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.  The Supervisor of Public Records has defined email as “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003). Both the general and specific language might be construed to encompass social media postings.

New Jersey

Although there are no reported cases in New Jersey dealing with social media postings and messages, there is no reason to believe that they would be treated any differently than e-mail. 

New Mexico

There is no statutory or case law addressing this issue.  However, social media postings should be treated the same as emails and text/instant messages.  See §14-2-6(F), NMSA 2011, §§14-3-15.1 and 14-3-18(C), NMSA 1978.  To determine under what circumstances such postings will or will not be public, see the sections infra discussing emails and text/instant messages.

New York

The statute does not address social media messages or postings, however, the statute defines"record" to include information in any physical format whatsoever. N.Y. Pub. Off. Law § 86(4) (McKinney 1988).

North Carolina

This has not been addressed. 

North Dakota

There is no statutory or case law addressing this issue.

Ohio

There is no statutory or case law addressing this issue.

Oklahoma

While there have been no decisions or legislative actions concerning social media postings and messages, the Attorney General opinions concerning electronic communications should apply. See 2001 OK AG 46 and 2009 OK AG 12.

Oregon

There is no statutory or case law specifically addressing this issue. The test is whether a given posting or message relates to the public’s business, under ORS 192.410(4)(a), and is a “writing” under ORS 192.410(6). Because the definition of “writing” is very broad, postings or messages relating to the public’s business are probably public records. 

Pennsylvania

Social media postings and messages are presumptively accessible.

Rhode Island

There is no statutory or case law addressing this issue.

South Carolina

Social media postings and messages meeting the definition of “public record” discussed above would be public.

South Dakota

Presumably, the same as emails.

Tennessee

No reported cases, but if the posting could qualify as a public record, then it would not likely be exempt.

Texas

Not specifically addressed.

Utah

GRAMA defines a “Record” to include “electronic data,” “documents,” and “other documentary material regardless of physical form or characteristics.” Utah Code Ann. § 63G-2-103(22)(a).

Vermont

Not specified.

Virginia

Electronic messages fall within the definition of "public records" and is subject to disclosure. Va. Code Ann. § 2.2-3701. In the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).

Washington

There is no statutory or case law addressing this issue, though the definition of “public record” is broad enough to encompass such postings.

West Virginia

There have been no court decisions or agency guidance indicating how social media postings and messages are to be treated for purposes of FOIA analysis.

Wisconsin

Wisconsin has not addressed this issue.

Wyoming

No Wyoming cases have yet addressed this issue, but the broad definition of a record would seem to include these postings.