8. Social media posts

There is no reason for this form of record to be treated differently, especially since access to emails has already been established in this State. See Tenn. Valley Printing Co. v. Health Care Auth. of Lauderdale Cnty., 61 So. 3d 1027 (Ala. 2010).

Social media posts, to the extent relating to official government business and within the constructive possession of public agencies, public officials or individual public employees, constitute “writings” under the CPRA as they fall within “every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored.”  Cal. Gov’t Code § 7920.545.

Not specifically addressed.

Social media posts are not exempt from the Act’s disclosure requirements. However, the Act does expressly provide that “[r]equests 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).

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).

There are no Iowa cases that address whether social media posts are considered public records.  Presumably they are because public records include all records, documents, tape, or other information, stored or preserved in any medium. Iowa Code § 22.1(3); see United States v. Story Cty., 28 F. Supp. 3d 861, 871 (S.D. Iowa 2014) (noting there is no difference between cases that “were stored in electronic format as opposed to having been stored in hard copy format”).

Social media posts can be public records. The definition of a public record includes documents “regardless of physical form or characteristics, including electronically stored information.” La. Rev. Stat. Ann. § 44:1.

Social media posts are public records.

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 “the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes ‘public records.’”.” Guide to Mass. Pub. Recs. Law at 9 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.  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.

Whether social media postings and messages are subject to disclosure under the FOIA is still a nascent area of law. In a recent case, direct messages sent to or received by a mayor over Facebook were treated much like e-mails or written notes and were held not to be subject to disclosure as public records if they “were not owned, used, in the possession of, or retained by the [mayor’s] office in the performance of an official function.” Blackwell v. City of Livonia, No. 357469, 2021 WL 5977221, at *6 (2021) (publication in Mich. App. and N.W.2d reporters pending). In deciding that the messages were not related to an official function for the purposes of FOIA disclosure, the court took into consideration that the Facebook profile that sent and received the messages at issue was utilized as a campaign page and was not an official page for the office of mayor. Id. at *5.

See I(C)(5).

A District Court in New Mexico held that the personal Facebook of a public official is a public forum, and posts “created and received” for “public business” are “subject to the IPRA inspection requirements.” Swanson v. Griffin, No. CV 20-496 KG/GJF, 2021 WL 930615, at *7 (D.N.M. Mar. 11, 2021). This included both posts made by the official and messages received. Id. . However, the contents of an officeholder’s campaign social media website are not public records of a public body within the scope of IPRA. Pacheco v. Hudson, 2018-NMSC-022, ¶¶ 34-36.

Not specifically addressed.

Social media postings and messages are presumptively accessible.

As with text messages, social media posts and messages are subject to the same analysis as more traditional written records. See Op. Tex. Att’y Gen. OR 2016-23161 (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 Op. Tex. Att’y Gen. OR 2015-14798.

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.” Op. Tex. Att’y Gen. OR 2016-23161 (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.

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. Attorney Gen. of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

Social media posts are covered by the Act.

There is no statute or case law specifically addressing this issue.

Wisconsin has not addressed this issue, but social media postings likely fit the definition of “record” under Wis. Stat. § 19.32(2).