States Get Social

By Deamer, Kacey | News Media and the Law, Winter 2011 | Go to article overview
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States Get Social


Deamer, Kacey, News Media and the Law


Government use of social media is popular, but is it following state laws?

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, FIa., 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]Il 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 ofthat 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.

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