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From the Winter 2011 issue of The News Media & The Law, page 24. In the age of social media…

From the Winter 2011 issue of The News Media & The Law, page 24.

In the age of social media and Web 2.0 technology, state governments are connecting with citizens in new ways, particularly through the use of social media websites such as Facebook and Twitter.

However, state agencies maintaining social media sites are faced with the task of ensuring such action adheres to public records and open meetings laws. As a result, some governments have taken preventative measures to safeguard themselves from violations.

Prior to launching a Facebook profile, the city of Coral Springs, Fla., wanted to ensure that there was a clear understanding of their legal obligation to maintain public records under state law. Samuel S. Goren, the former Coral Springs city attorney, wrote to then-Florida Attorney General Bill McCollum on behalf of the Coral Springs City Commission inquiring about the application of Florida’s public records law regarding Facebook.

In 2009, McCollum authored an advisory opinion in response to Goren’s letter. McCollum determined that “the creation of a Facebook page must be for a municipal, not private, purpose.” Therefore, he concluded that “placement of material on the city’s page would presumably be . . . in connection with the transaction of official business and thus subject to the provisions” of Florida’s public records law.

The opinion noted that Florida law defines public record to include: “[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”

McCollum determined “there may be material placed on the city’s Facebook page that is personal and does not relate to the transaction of official business.” Therefore, for each piece of content on the Facebook page, “the determination would have to be made based upon the definition of ‘public record,’” he said.

The city of Coral Springs’ Facebook profile was launched in 2009. The city’s legal requirements for maintaining the Facebook profile are posted to its website: “Under Florida law, The City of Coral Springs’ Facebook page was established for municipal purposes of communicating City business, apprising City residents of upcoming events and allowing residents a forum in which to discuss certain topics relevant to the official business of the City.”

Under a state’s public records laws, generally, documents concerning government business must be filed and saved for a certain period of time. If a city council maintains a social media site on which it shares government information, the contents of that site must be managed as a public record. Social media sites also raise the possibility of violating the state’s open meetings law if, for example, government officials post comments about state business.

The North Carolina Office of the Governor published a list of guidelines in 2009 that offered “best practices” for social media use in the state. The document states that communications via agency-related social networking sites are public record.

“Both the posts of the employee administrator and any feedback by other employees or non-employees, including citizens, will become part of the public record,” the governor’s office explained.

Because public records laws may not be understood by all users of social networking sites, the governor’s office suggested including the following statement on the website: “Representatives of North Carolina state government communicate via this Web site. Consequently any communication via this site (whether by a state employee or the general public) may be subject to monitoring and disclosure to third parties.”

While some states, like North Carolina, have produced guidelines for social media usage, no states have specifically included social media sites in their definition of a “public record.”

For instance, Washington also published guidelines for social media use, but no statutory provisions. “To my knowledge, it hasn’t been added to any laws per se, but because it is essentially a record that we would have to maintain much like any other communication effort we have it falls under that purview,” according to Kris Rietmann, the governor’s new media manager.

As such, “any state agency that uses any type of social media tool would have to follow records retention rules,” Rietmann said. She explained that the retention of social media records would depend on the content of the site. “In [the Governor’s Office] we use it to kind of promote our news releases, for instance, or information that would be found in our news releases, so we then follow a records retention schedule that is similar to what we use for our news releases,” Rietmann said.

However, not all agree that a public official’s social media use automatically triggers open government law compliance.

For instance, California State Sen. Leland Yee maintains a Facebook page that is not connected to his Senate office, according to the senator’s chief of staff, Adam Keigwin. Keigwin said that the senator never deletes information from his Facebook page.

Other than the archive created on Facebook, the information is not otherwise saved, nor is it required to be, said Keigwin.

Under the California Legislative Open Records Act, members of the legislature are required to maintain public records.

The act defines “legislative records” as “any writing . . . which contains information relating to the conduct of the public’s business prepared, owned, or retained by the Legislature.”

Keigwin said that because Yee’s Facebook profile is not connected to the Senate office, it is not considered public record. If brought before the California State Senate Rules Committee, Keigwin expects the same opinion.

“At best [his Facebook page] would be considered the same as what his state website is, in terms of open records, and at worst it’s not a state entity period. And so I would suspect the Rules Committee would say it’s not a state run website, it’s not run within his state office, it’s not an issue of the Senate in terms of open records, just like his campaign website doesn’t fall under the Open Records Act,” he said.

However, if a social media profile were being utilized by another Senate office and it was run out of that office, then Keigwin believes that would indeed fall under public record law.

While many government agencies continue to establish a social media presence to better connect with citizens, the uncertainty created by open government law compliance has led some to discontinue use of social media sites. For instance, the need to comply with state public records and open meetings laws became too daunting for one local California government. Redondo Beach, Calif., discontinued its Facebook account in fall 2010, after one year of activity. City Attorney Mike Webb recommended the deletion due to “a handful of potential legal concerns,” the Daily Breeze reported.

The local newspaper mentioned Webb’s concerns: “Among them are whether Redondo Beach would have to retain user comments under the state’s Public Records Act — a task that would likely come with a cost.” Webb told the newspaper. “Social media is inevitable, but we just think from a legal point of view Facebook has too many complications.”

Nevertheless, research suggests more government organizations are taking to the Internet and social networking sites despite these unresolved legal questions.

The National Association of State Chief Information Officers represents state chief information officers and information technology executives and managers from states, territories and the District of Columbia.

In 2010, the association conducted a survey that asked state governments about their social media use. The survey did not request information on whether or not the states had established social media sites at that time. Forty-three state governments replied on behalf of state-controlled agencies.

Nearly 50 percent of state governments characterized “the current status or implementation of social media initiatives,” despite the risks and concerns, as “proceed with caution,” according to the survey.

About 23 percent said social media efforts were moving “full speed ahead” and one quarter characterized their efforts as “dipping toes in water.” Only 2 percent characterized social media use initiatives as “doing very little.”

When asked to rate common concerns for social media use, 18 state governments listed “records retention issues” as a high concern, while 13 rated it as a medium concern.

Seventy-two percent of states said they have begun developing and implementing polices to better manage social media use and the same percentage said developing and implementing guidelines is an action being taken. For the purposes of this survey, the association defined “policy” as a higher-level business decision, while guidelines are the implementation of the policy.

The study also found that social media sites’ legal terms of service are an area of concern.

The main issue is that the terms of service were not created with the intent of government use and need to abide by open government laws.

The survey lists “indemnification, jurisdiction, choice of law, advertising, endorsement, assignment, and intellectual property, among others” as legal areas that pose issues for government use. The association’s Social Media Working Group has worked with representatives from Facebook and YouTube to resolve terms of service issues. However, “the providers have proven reluctant to accede on a variety of legal points,” the report said.

Suzanne Shaw, senior counsel at the Washington Attorney General’s Office, is a member of the National Association of State Chief Information Officers legal team and has been involved in negotiations with vendors.

Shaw said that states are most concerned with “indemnification, choice of law and venue and jurisdiction” in site terms of service.

The reason the negotiations have been difficult is that “it’s a challenge for [providers] to consider how to deal with 50 governments,” Shaw said.

In negotiations, it seems that the social media platform providers are “reluctant to agree to applying the law of 50 jurisdictions,” Shaw noted. State governments have argued: “We can’t wave our sovereign immunity and agree to the jurisdiction of the federal courts or agree to the jurisdiction of another state,” she said. Neither the providers nor the state governments will concede on most topics.

“The working group did manage to get agreed terms with Facebook” on the issues of indemnity and governing law, as well as a few others, Shaw said. However, public records law is not a “primary concern” of the states and therefore was not discussed in negotiations.

Open government coalitions have also raised concerns over whether government use of social media sites violate state laws. Toby Nixon, president of the Washington Coalition for Open Government, said the coalition has been involved in the social media debate to ensure the public’s right to access public records remains intact on such platforms. Nixon defined a social media public record as “[if] a government agency like a city were to have a Facebook page, anything that they publish on that would be a public record and would be subject to the same retention requirements, the same disclosure requirements, as any other public record. Likewise, any comments that get posted, technically, are public record.”

There is a concern for the government’s actual ability to adhere to public record law when using social media.

“[T]he challenge that government agencies face that have that kind of Facebook page or a blog is: How do they extract the information out of that cloud service and be able to store it in a manner that meets the requirements of the law,” Nixon said.

Virginia Coalition for Open Government’s Executive Director Megan Rhyne said social networking sites have “enormous potential to keep the public updated and informed” on government actions.

“It’s also a good avenue for soliciting public comment,” she added. However, many of these sites lack features that allow preservation of material.

“What our concern has always been about the use of these types of media is just that they were not developed with the thought of preserving what’s written on them as public records,” she said.

Some Washington state agencies have turned to more unconventional methods to preserve content on social media websites in order to maintain a public record. “What some agencies have done that have Facebook pages and that kind of thing, is periodically snapshot the contents of the page to make sure that they have it available,” Nixon said. The snapshot can be stored a number of ways, whether as a PDF or simply as a printed page, which then becomes the public record. “So far I’m not aware of there being any controversy about the fact that it’s maybe not in the original form,” he said.

Despite the challenges social media sites pose to open government compliance, many government agencies are using social media as an official tool.

The use of these sites by state governments has become so prevalent that in late April 2010, Microsoft introduced a social media directory for state and local government.

The website, Gov2Social, links to the social media platforms of elected officials, state government agencies, cities, towns and counties. The site can be expanded by users, who can input their local government’s social media sites.

While the Gov2Social website is not a complete list, there are links to social networking sites for every state. The most commonly used sites, according to Gov2Social’s listings, are Twitter, Facebook and YouTube.

If used in compliance with state law, social media can be a tool that promotes transparency for state governments. Nixon said, “We think that it’s a good thing for public agencies to reach out to their citizens, their constituents, and have conversations about public policy but they need to do it in such a way that they can comply with the law.”