Social Media + Internet Law Blog

Social Media & Public Records (and a Killer Startup Idea).

Category: Social Media

A dozen or so people have asked me about social media and public records.  And I’ve told them the issue’s past whether social media posts constitute public records, and onto how federal, state, and local governments are going to archive and manage the posts for purposes of the Freedom of Information Act (FOIA) and state public records laws.

Social Media Posts As Public Records Is Hot.

I mean, look what’s trending now.  As part of the Office of Management and Budget (OMB)’s Open Government Directive (which includes social media use), OBM sent a memo in December 2009 to the heads of the executive departments and agencies, instructing them to provide a link to a website that shows how they’re meeting the records management requirements.

North Carolina’s Best Practices for Social Media Usage explicitly states that “[l]ike e-mail, communication via agency-related social networking Web sites is a public record . . . [and] agencies must assume responsibility for public records and adhere to the schedule of collection for social networking Web site set by the North Carolina State Archives.”

Similarly, the Idaho State Department of Education’s Social Media and Blogging Policy, provides that all internet postings are subject to the State of Idaho public records law, and all employees must follow Idaho’s administrative procedures for responding to requests for examination or copying.  That one, I wrote.

The City of Seattle, in its Social Media Use Policy, likewise makes clear that “City of Seattle social media sites are subject to State of Washington public records laws . . . [and] Washington state law and relevant City of Seattle records retention schedules apply to social media formats and social media content.”  The State of Washington even went as far as to preempt the coming blitz of public records requests for social media posts by amending its Public Records Act to allow local governments to respond to records request by providing individuals with a link to where the documents are posted on the agency’s website.

But these governmental entities are ahead of the game.  The National Archives and Records Administration is still exploring records management implications of implementing social media tools, and state and local governments continue to ask how to archive social media posts.

And they should.  The Federal Rules of Civil Procedure provide for discovery of all electronically stored information or other data compilations stored in any medium, and most states, including my home State of Idaho, require record retention at both the county and municipal level.

Further, the Idaho Supreme Court has held that e-mail correspondence, even though of a personal nature, may constitute a public record if it relates to the conduct or administration of public business and provides an explanation for a public official’s action.  If social media posts are treated the same as electronic correspondence for purposes of public records requests, which they typically are, you can add government employee posts on personal social networking accounts related to official business to the mix. And that’s kind of big.

You Know What’s Also Hot?  Archiving Standardization.

The savviest of governmental entities are testing out the best in the game for archiving public records, and thus far, they’re not backing a single outfit.  Rather, consensus is that various third-party tools and plug-ins are golden for now. Check out Microsoft Outlook Twinbox (which allows a person to send a tweet from Outlook and then archive it in a folder), ArchiveFacebookTweetTakeSocialSafeBackUpMyTweets.comBackupify, and others to get an idea what’s out there.  What are you using?  Startup hacks, what would you have them use?



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