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8. How are social media postings treated?

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  • 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 of this Guide. 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)—or more specifically, in light of the Supreme Court’s ruling in McLeod, whether they are “appropriate for preservation.” McLeod v. Parnell, 286 P.3d 509, 515 (Alaska 2012).

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  • Arizona

    Not addressed.

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  • 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).

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  • California

    There are no reported cases under the CPRA addressing the public’s right of access to social media posts of a public agency or public employee. Arguably, if the matter posted relates in some substantive way to the public’s business and was “prepared, owned, used, or retained” by a public agency or public employee it is a public record. See, e.g., City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017) (holding emails sent to and from private email accounts of city council members relating to the public’s business were public records within the meaning of the CPRA).

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  • Colorado

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

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  • Connecticut

    No case law on this issue.

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  • 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).

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  • District of Columbia

    Neither the statute nor the courts have addressed this specifically, but social media postings and messages would likely be considered "information stored in an electronic format" under the D.C. Act.  D.C. Code Ann. § 2-502(18). The legal framework for public matters on private e-mail accounts, would likely determine whether the messages should be disclosed in a particular case.  Public matters on a private e-mail account can be considered public records under the D.C. Act if they were "prepared, owned, used, in the possession of, or retained by a public body." Vining v. District of Columbia, 2014 D.C. Super. LEXIS 14, at *6 (July 9, 2014) (quoting D.C. Code Ann. §2-502(18)). Accordingly, social media postings and messages that discuss public matters could be disclosed under the D.C. Act if they are prepared, owned, used, in the possession of, or retained by a public body.

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  • Georgia

    Social media postings and messages are subject to the Act.  The Act requires that “requests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.”  O.C.G.A. § 50-18-71(g).

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  • Hawaii

    There is no statutory or case law addressing this issue.

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  • Idaho

    There is no provision in the Act or relevant case law relating to social media postings and messages.

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  • 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).

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  • Indiana

    Although there is no statutory or case law addressing this issue, Indiana Public Access Counselor, Luke Britt, addressed access requests for Facebook data. Opinion of the Public Access Counselor 13-FC-250 (2013). The Public Access Counselor advised that Facebook data is included in the definition of “public record[s],” Indiana Code Section 5-14-3-2, and although the agency has discretion to moderate comments on its Facebook page, the agency must retain records of such comments.

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  • Iowa

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

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  • Kansas

    The 2016 amendments apply KORA to any electronic communication made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency”, not just email.  “The electronic nature of the record does not change the rules under the KORA.” Kan. Att’y Gen. Op. 2002-1.

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  • 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 Kentucky Open Records Act because the Act covers 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://kdla.ky.gov/records/recretentionschedules/Pages/stateschedules.aspx.

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  • Louisiana

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

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  • Maine

    Any social media records, including communications sent or received by public officials and agencies, are subject to the same public records requirements as any other form of record or communication.  1 M.R.S.A. § 402(3).  Any social media posting or message “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” is a public record.  1 M.R.S.A. § 402(3).

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  • Maryland

    There is no statutory or case law addressing this issue.  

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  • Michigan

    Not specifically addressed.

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  • Montana

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

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  • Nebraska

    Social media postings and messages are not treated in the public record statutes. It seems likely that social media postings and messages would be treated the same as text messages.

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  • Nevada

    Social media content may be considered to be public records under the NPRA. NRS 239.010.

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  • New Hampshire

    As “governmental records.” See RSA 91-A:1-a,III-IV.

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  • 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.

    There are no reported cases in New Jersey that expressly hold that social media postings are accessible under OPRA.  However, OPRA defines a “government record” broadly as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

    Thus, it appears that social media postings would fall within this definition and would be considered government records, subject to access, unless they fall within a particular exemption.

    Under N.J.S.A. 47:1A-1.1, a government record does not include:

     

    personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver's license number, email address, or social media address of any applicant or licensee;

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  • 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 NMSA 1978 § 14-2-6(G) (2013) §§ 14-3-15.1 and 14-3-18(C) (2011).  The Inspection of Public Records Act provides a very broad definition of public records that likely encompass social media postings and messages.  See NMSA 1978 § 14-2-6(G) (2013). “[P]ublic records” means all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business …”  Social media postings on public databases or public equipment likely constitute a record under this broad definition.

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  • North Carolina

    Social media postings and messages are not expressly addressed in the Public records law but falls within the definition of a public record, which includes any “documents, papers, letters, . . . regardless of physical form or characteristics, made or received . . . in connection with the transaction of public business.” G.S. § 132-1(a). The attorney General of North Carolina has advised public agencies that email messages related to the performance of a public employee’s duties are public records. The AG’s open government guide confirms: “Public records include both paper and electronic documents, emails, papers …”

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  • North Dakota

    Social media postings and messages would likely be treated as open records. A “record” under North Dakota law means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business. N.D.C.C. § 44-04-17.1(16) (emphasis added).

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  • Ohio

    There is no statutory or caselaw addressing messages posted by a public official, public employee, or public office on social media.

    The Ohio Supreme Court is likely to treat social media postings as it has emails and text messages. Postings that arise from a public employee's authorized duties are likely to be public record; otherwise, they are not likely to be public record. But every posting on a public office's Facebook page will be public record.

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  • 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.

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  • 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 192.311(5)(a) (formerly ORS 192.410(4)(a)), and is a “writing” under ORS 192.311(7) (formerly 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.

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  • Rhode Island

    There is no statutory or case law addressing this issue.

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  • South Carolina

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

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  • South Dakota

    Social media postings, also, presumably, will get the same treatment as email.

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  • Tennessee

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

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  • Texas

    As with text messages, social media posts and messages are subject to the same analysis as more traditional written records.  See Tex. Att’y. Gen. Op. OR2016-23161 (2016).  They are subject to disclosure under the Act to the extent they were written, produced, collected, or assembled in connection with official business.  Id.

    Considering a “request for all comments made on social media pages of the city’s police department” in an informal letter ruling, the Attorney General noted that the Act can “encompass information that a governmental body does not physically possess,” and that any information “written, produced, collected, assembled, or maintained by a third party . . . may be subject to disclosure under the Act if a governmental body owns, has a right of access, or spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information.”  Id.  Because the requested social media content was used “to advance the goals” of the governmental body, and the body actively managed the content, the information was subject to the Act.  See id.

    Conversely, where requested information “consists of personal social media messages” sent during an employee’s “personal time,” said information has not been written produced, collected, assembled, or maintained in connection with transaction of official business, and is likely not subject to disclosure.  See Tex. Att’y Gen. OR2015-14798.

    Access may also depend on the nature of the specific social media platform being used.  In one informal letter ruling, the Attorney General specifically highlighted provisions of Facebook’s “Terms of Service Agreement,” which provided: “You [the user] own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.”  Tex. Att’y. Gen. Op. OR2016-23161 (2016).  The fact that the governmental body owned the information posted on its Facebook account, and had the right to manage and control it, weighed in favor of considering it public information.  See id.

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  • Utah

    GRAMA defines a “Record” to include “electronic data,” “documents,” and “other documentary material regardless of physical form or characteristics.” Utah Code § 63G-2-103(22)(a). Given this definition, social media postings and messages regarding a public matter on government hardware are presumably public unless otherwise specifically exempted. Utah Code § 63G-2-103(22)(a). However, a “Record” does not include “personal communication[s] prepared or received by an employee or officer of a governmental entity: in a capacity other than the employee’s or officer’s governmental capacity; or that is unrelated to the conduct of the public’s business.” Utah Code § 63G-2-103(22)(b)(i)(A),(B). The meaning of “capacity other than the employee’s or officer’s governmental capacity,” and whether it extends to social media postings and messages regarding a private matter on government hardware or a public matter on private hardware, is not addressed.

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  • Vermont

    A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, social media postings and messages would likely fall under the statute’s definition of a “public record” if they were “produced or acquired in the course of agency business.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

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  • Virginia

    Electronic messages fall within the definition of "public record" and are subject to disclosure. Va. Code Ann. § 2.2-3701. The analysis is analogous to email messages.

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  • Washington

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

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  • 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.

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  • Wyoming

    No, Wyoming cases have yet addressed this issue, nor is it specifically discussed in the statute.

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