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Slide 1 - Social Media and the Public Records Act WAPA Spring Conference April 21, 2011 Presenter: Joe Levan, MRSC Legal Consultant 1 www.mrsc.org (206) 625-1300
Slide 2 - MRSC Programs Inquiries Publications Web Site – www.mrsc.org Library Training Special Projects www.mrsc.org (206) 625-1300 2
Slide 3 - What to do Call us E-mail us www.mrsc.org (206) 625-1300 3
Slide 4 - How to Reach Us Phone (206) 625-1300 1-800-933-MRSC (6772) E-mail mrsc@mrsc.org Web www.mrsc.org Mail 2601 Fourth Avenue, Suite 800 Seattle, WA 98121 Fax (206) 625-1220 www.mrsc.org (206) 625-1300 4
Slide 5 - Social Media and the Public Records Act What is social media? How does the PRA apply to social media? Key strategies from policies of other local governments. www.mrsc.org (206) 625-1300 5
Slide 6 - Social Media Important to consider use of social media by public employees and officials Develop social media policy with public records and records retention aspects before using social media www.mrsc.org (206) 625-1300 6
Slide 7 - Many Types of Social Media Blogs Facebook Twitter YouTube Flickr Shutterfly MySpace LinkedIn www.mrsc.org (206) 625-1300 7
Slide 8 - Changing Technology Social media tools and formats are constantly evolving Regarding retention, it is likely the record will outlive the media The State Archivist indicates that it is all about the record, not the media or record format it is held within www.mrsc.org (206) 625-1300 8
Slide 9 - PRA Applicability Under the Public Records Act, a “public record” is defined broadly to include any: Writing Containing information relating to the conduct of government That is prepared, owned, used, or retained by that government regardless of physical form or characteristics www.mrsc.org (206) 625-1300 9
Slide 10 - Electronic Records Electronic records are public records when they are created or received in the transaction of public business and retained as evidence of official policies, actions, decisions, or transactions Electronic records must be identified, filed, and retained just like records in other formats Review State Archivist’s Records Management Guidelines and General Records Retention Schedules www.mrsc.org (206) 625-1300 10
Slide 11 - Electronic Records WAC 434-662-040: Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention period. Printing and retaining a hard copy is not a substitute for the electronic version unless approved by the applicable records committee. **** www.mrsc.org (206) 625-1300 11
Slide 12 - Court Guidance on E-Records Mechling v. City of Monroe, 152 Wn. App. 830 (2009), rev. den., 169 Wn.2d 1007 (2010) The court addressed a situation involving e-mails, including redaction issues If a requester requests a record in electronic format, the agency must to the extent reasonable and feasible cooperate in providing the records in the format requested  Citing: WAC 44-14-050; WAC 44-14-05001 www.mrsc.org (206) 625-1300 12
Slide 13 - Court Guidance on E-Records Mechling v. City of Monroe (continued) If any portion of an electronic record constitutes a public record, the entire record is a public record, although exempt information can be redacted Regarding electronic redactions, the court found that the city did not have an obligation to scan the e-mails to create PDF or TIFF files www.mrsc.org (206) 625-1300 13
Slide 14 - Court Guidance on E-Records O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010) The court addressed a situation involving an e-mail exchange, including e-mails received and sent from a city councilmember’s personal computer and personal e-mail account – the requester requested the e-mails and the metadata. An agency has a duty to provide records to the public that are subject to the PRA, regardless of the form of the record. See also, RCW 42.56.070(1). The city was required to provide the requested metadata that was part of the subject e-mail exchange. www.mrsc.org (206) 625-1300 14
Slide 15 - Court Guidance on E-Records If a government official or employee uses his/her personal computer for agency business, and a PRA request is made for a record that resides on that computer, it may be necessary to inspect that computer In O’Neill, the court remanded for the trial court to give the city the chance to search for the requested metadata, and to determine whether the city violated the PRA www.mrsc.org (206) 625-1300 15
Slide 16 - Question: How do you respond to a PRA request related to the county’s Facebook page? www.mrsc.org (206) 625-1300 16
Slide 17 - PRA Considerations Under Mechling v. Monroe, the agency must cooperate in providing the records in the format requested to the extent reasonable and feasible   If the requester does not specify a format, perhaps printed screen shots would suffice If an electronic copy is requested, how can the agency provide an electronic copy of a third party site? www.mrsc.org (206) 625-1300 17
Slide 18 - Retention Issues Key overlap between PRA and retention requirements If the county develops an effective retention system for electronic records, it will be in a much better position to respond to PRA requests Implementation of policies and technology www.mrsc.org (206) 625-1300 18
Slide 19 - Guidance from the State Archivist Source: Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records (2009) Are the posts public records? Made or received in connection with the transaction of county business? Such as providing advice or receiving comments about the county, county programs, or core functions? www.mrsc.org (206) 625-1300 19
Slide 20 - Guidance from the State Archivist Are the posts primary or secondary copies? Posts that are simply copies of records the county is already retaining for the minimum retention period (e.g., links to publications) may be considered secondary copies Otherwise, the posts are the county’s primary record www.mrsc.org (206) 625-1300 20
Slide 21 - Guidance from the State Archivist What is the retention period for such posts? Use the same retention record series for posts that the county would use if the same information was provided as a letter or e-mail The county needs to retain their primary record of posts which are public records for at least the minimum retention period listed for those records in the approved retention schedules www.mrsc.org (206) 625-1300 21
Slide 22 - Guidance from the State Archivist How should the posts be retained? Issues of custody and control When retention of the posts is outside the county’s control, the county needs to consider what other records will be retained Such as e-mail confirmations of each post or comment Consider such issues in any service contract with vendors or social media site operators www.mrsc.org (206) 625-1300 22
Slide 23 - Consider re: Possible Retention Options The content of the record is what is at issue, not the medium There is a risk in using social media sites Users may not have sufficient control to ensure posts are retained for that record’s full retention period www.mrsc.org (206) 625-1300 23
Slide 24 - Possible Retention Options Option: The county can first post content on its website and then re-post the same content on its social media site (e.g., county Facebook page) Based on information from the State Archivist, this sequence of posting will make the social media post a “secondary” copy that will only have minimal retention value www.mrsc.org (206) 625-1300 24
Slide 25 - Possible Retention Options Option: The county should establish a separate county e-mail account for social media tools Also consider using or developing applications that capture social media records www.mrsc.org (206) 625-1300 25
Slide 26 - Possible Retention Options Some third party commercial providers TwInbox Tweetake SocialSafe Cloudpreservation PageFreezer Backupify This is an area where local governments could act collectively and cost effectively to find/build software that could be used by other local governments. www.mrsc.org (206) 625-1300 26
Slide 27 - Possible Retention Options Option: Manual retention Use of screen shots, spreadsheets www.mrsc.org (206) 625-1300 27
Slide 28 - Third Party Posts Comments to a county Facebook page or other social media site by a third party can also qualify as a public record Many social media sites allow those who post comments to edit or delete their own comments This creates records retention risks www.mrsc.org (206) 625-1300 28
Slide 29 - Third Party Posts – Option If the county allows third parties to post comments to its Facebook page, the county may be able to establish a process whereby county staff can review any comments before they are posted Through such a process, the county could post the comments to its own website first Another option would be for the county to capture the comments right after they are posted so the county can retain a copy if the poster of the comments later edits or deletes those comments www.mrsc.org (206) 625-1300 29
Slide 30 - County’s post to social media site What must be provided if a PRA request is made for such posts? What if the PRA request is for the post in electronic format? www.mrsc.org (206) 625-1300 30
Slide 31 - County’s post to social media site Possible approaches If a requester only requests printed records, printed screen shots should suffice Another option, if agreeable to the requester, is for the county to cut and paste the content into an electronic document (e.g., Word, Excel) www.mrsc.org (206) 625-1300 31
Slide 32 - County’s post to social media site But what if the requester asks for the original records (e.g., Facebook posts) in electronic format? The county will not be able to produce the computer code from Facebook As a defense, the county could perhaps argue that it is unreasonable and not feasible technologically to produce a third party’s website in electronic format (see WAC 44-14-05001) www.mrsc.org (206) 625-1300 32
Slide 33 - County’s post to social media site However, the fact that a county is unable to obtain an existing record is not an absolute defense Absent clear guidance from the courts or legislature, risk remains in taking such a position www.mrsc.org (206) 625-1300 33
Slide 34 - Key Summary Points Assume all material on the county’s social media site (e.g., county’s Facebook page) is a public record Post only secondary copies – only post content on the Facebook site that is provided elsewhere, such as the county’s website or county newsletter Based on the Secretary of State’s Local Government Records Retention Schedule (July 2010), an agency can destroy secondary copies after they are no longer needed for agency business – but check with State Archivist www.mrsc.org (206) 625-1300 34
Slide 35 - Key Summary Points Identify and retain primary copies Comments posted by outside parties to the county’s Facebook page will constitute a “primary copy” There may be situations in which the county wants to post customized content for use only on the county Facebook page (e.g., an article) – such content would be considered “primary” “Social networking posts and comments” are addressed by the Records Retention Schedule – such records require retention for a minimum of two years – but check with State Archivist www.mrsc.org (206) 625-1300 35
Slide 36 - Additional Resources MRSC Website (www.mrsc.org): Social Media Electronic Public Records Retention Open Government Advisor MRSC Publications: Public Records Act for Washington Cities, Counties, and Special Purpose Districts (November 2009) www.mrsc.org (206) 625-1300 36
Slide 37 - Additional Resources Washington State Guidelines and Best Practices for Social Media Use In Washington State, Office of the Governor in Coordination with Multiple State Agencies and Contributors, 2010 Friends, Faux Pas, Tweets & Traps, Social Media & Cities, Questions & Considerations, Association of Washington Cities (2010) www.mrsc.org (206) 625-1300 37
Slide 38 - Additional Resources Secretary of State – Washington State Archives website Electronic Records Management - Advice and Resources Blogs / Wikis / Facebook / Twitter / Web 2.0 E-mail Management Imaging / Digitization / Scanning Website Management Washington Attorney General’s website: www.atg.wa.gov Open Records & Open Meetings Deskbook 38 www.mrsc.org (206) 625-1300
Slide 39 - Contact Info Joe Levan, MRSC Legal Consultant jlevan@mrsc.org (206) 625-1300 www.mrsc.org (206) 625-1300 39