Social Media and Public Records: Transparency in the Digital Age

Red File Amongst White For Getting Organized On The Computer

Red File Amongst White For Getting Organized On The Computer

Today, over 70% of the American public gets their news from twitter and other social media instead of from newspapers.   Elected officials who use social media to communicate to the public are not exempt from New Jersey’s Open Public Records Act (OPRA).

In April, the Vineland Police Department was criticized for blocking and removing comments on its Facebook page regarding the death of Phillip White, who died in police custody on March 31. The Vineland City clerk later acknowledged that censoring the comments violated OPRA and the police department unblocked the comments.

When Is Social Media a Government Record?

OPRA defines a government record 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 … or that has been received in the course of his or its official business…” (Emphasis added.) Essentially, any record that has been made, maintained, or kept on file in the course of official business, or that has been received in the course of official business qualifies is subject to disclosure unless in falls within one of OPRA’s exemptions.

OPRA is not limited to paper documents and expressly includes tape recordings, microfilm, electronically stored records (including e-mails and data sets stored in a database), books, maps, photographs, etc. However, as the situation in Vineland highlights, local governments often have difficulty identifying what constitutes an official government record in the digital age.

Under OPRA’s definition of government record, information posted to social media by public entities and any comments received related to that information constitute government records.

When it comes to photos posted to social media and messages exchanged through the apps, the law is less clear. “Basically, what’s happening here is we’re trying to put a round peg in a square hole,” stated Ed Purcell of the New Jersey State League of Municipalities in the wake of the Vineland scandal. “The law wasn’t meant for this stuff. It’s new and it’s modern and we’re trying to apply this law that wasn’t meant for social media to social media.”

Once a public entity determines that its social media activities fall under OPRA, record retention is another challenge. If social media content is considered a government record, public entities are obligated to follow the applicable public records retention schedule. Unfortunately, retaining electronic documents hosted by a third-party can be difficult. For instance, if a municipality removes a comment for violating its posting policy, it must still retain a copy. In addition, if public employees post comments on social media sites as part of their job, they should keep a local copy of anything that requires retention. While there are companies that offer record retention services, the costs may be prohibitive for some municipalities. At the same time, regularly taking a “screen shot” or picture of the Facebook page or Twitter feed can also be time-consuming.

Compliance in Uncharted Territory

OPRA does not specifically address social media, and the Government Records Council has not issued guidance. There are not even any decisions yet regarding government use of social media and the obligation to retain records. As a result, many municipalities are playing it safe. That means not allowing anyone to post comments and avoiding posts that contain original material, i.e. posting links to existing content, in order to avoid record retention obligations.

For public entities that want to fully take advantage of social media, it is essential to create a written policy. At minimum, it should address the following: what social media content constitutes a public record; what methods the municipality will use to capture and store the records; how long the records must be archived, including those retained by third-party service providers; and how to archive comments and other material on other social media sites by municipal employees.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.