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Monday, August 10, 2015

Social Media Records Retention Guidance for Local Governments

Is a social media post a public record that must be retained under state of Illinois record retention laws (i.e., Local Records Act or State Records Act)?   The Illinois Secretary of State has answered that question with a "it depends" in a 2015 publication called "Government Records Law and Social Media: Guidance for Illinois Government Agencies."  

The SOS first acknowledges that content on social media sites is more difficult for a government agency to control because these sites are (1) controlled by non-contracted third party entities and (2) are not subject to regulations that cover government agencies. As a result, the SOS cautions, these sites offer no guarantee that a government can control or capture everything that has been posted. 

For the most part, the guidance offered by the SOS is consistent with the practice of most government bodies, with the exception of #5 regarding FOIA requests submitted via social media sites.

Here's a summary of the 5 guidelines in the SOS' publication:

1.  Are social media posts public records?

Social media posts are public records if:

(a) the posts are made on an official public agency account or on a private account that is being used to distribute information for that agency to the public. Content posted on private accounts of public employees not used as part of their jobs is not a public record.

(b) the content posted is unique. So, if the same content is transmitted by a press release, newsletter, on the government's website, or some other method, then the government can retain the "traditional" and not the social media version.

2.  How long do I have to retain a social media post that qualifies as a public record?

Social media content that qualifies as a public record will have different retention requirements, depending on the nature of the post because records retention is based on the content of the record, not its format. For example, a social media post that includes responses should be treated like correspondence. The dissemination of information, on the other hand, is treated like press releases, meeting notices, and other informational notifications.

3.  Do comments from the public have to be retained?

Not necessarily, unless the comments trigger some action by the agency. So, if a resident posts a complaint about the government, and there is no response to that complaint, then it is not a public record. On the other hand, if a resident posts a complaint, and the government responds (either directly to the post or by taking some action to address the complaint), then the post is a public record.

The SOS also advises that governments do not have to maintain inappropriate comments or inflammatory language and can moderate their social media pages. However, governments should be careful in moderating posts so as not to implicate the First Amendment. Having in place a social media comment policy that informs members of the public of the type of posts and comments that will not be allowed is important.

4.  How do I capture content from our social media accounts?

Most of the social media sites do not allow you to download activity logs, so governments need to consider alternative methods of retaining that content that qualifies as a public record. The SOS suggests capturing screenshots, or composing messages in local software, or using third party software that captures social media content automatically. 

The SOS discourages governments from using private messaging services through these social media sites because they are difficult to retain.

5.  Do we have to respond to FOIA requests submitted through social media.

The SOS says yes, taking a broad interpretation of section 3 of FOIA that states that "[w]ritten requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body." 

This advice seems problematic for a number of reasons. First, if someone posts a comment on a government's Facebook page requesting a particular document, that post may or may not show up in the government's timeline due to Facebook's "formula" for publishing posts in the timeline. Second, it is not always the case that the FOIA officer is also the person administering and monitoring the government's social media sites. Third, the SOS is not the state agency charged with enforcing the Freedom of Information Act - that is the job of the Public Access Counselor of the Attorney General's office and the courts.  As we have recommended in the past, governments should adopt a Freedom of Information Act policy that clearly states how FOIA requests should be filed with the government.  


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