Post by: Kim Stephens
I have gotten comments on this blog from citizens engaged in social media who are very disappointed about local government’s inability to “jump in the social media pool.” These technologies are very simple to use, 13 year olds are proficient, so why not? Of course, the government is not a private citizen and is required to follow some very onerous rules and regulations. I’d like to address two questions in particular that give some local governments pause: (1.) Does content generated on a social media platform constitute a government record? and (2.) Does citizen-posted content constitute freedom of speech?
At the Federal level, the National Archives and Records Administration released a bulletin on Oct. 20 that addresses records management for content generated on social media platforms. Although this is a Federal document, quite a few states have similar requirements. In order to determine if content is a record, and therefore needs to be maintained, NARA encourages Agencies and Departments to ask themselves these “non-exhaustive” questions:
- Is the information unique and not available anywhere else?
- Does it contain evidence of an agency’s policies, business, mission, etc.?
- Is this tool being used in relation to the agency’s work?
- Is use of the tool authorized by the agency?
- Is there a business need for the information?
The bulletin states: “As agency records officers and social media managers consider what web 2.0 content will be record material, they should identify which components or features of the content should be included….Even if agencies determine the content is not a Federal record, they still have management responsibilities for non-record content. For more information on how to manage non-record content, see 36 CFR 1222.14 and 1222.16.” The bulletin also states that all Federal agencies must include records management guidance in their social media policies and procedures.
In looking at local government policies, I highly recommend Orange County California’s website which has one of the most comprehensive list of local policies I’ve seen regarding the use of social media and the web in general. With regard to record’s management they have a simple statement which defers to the State law: “Agency/Department use of social media shall be documented and maintained in an easily accessible format that tracks account information and preserves items that may be considered a record subject to disclosure under the California’s Public Records Act or required to be retained pursuant to the Government Code.”
The Orange County document also addresses the other question I mentioned: Does citizen posted content constitute freedom of speech? Their answer is no…. “It is not intended to use social media sites in a way that guarantees the right to protected free speech (emphasis added). Each agency/department is responsible for monitoring postings, and taking appropriate action when necessary, to protect general site visitors from inappropriate or technically harmful information and links.”
- Sites that allow public comment shall inform visitors of the intended purpose of the site and provide a clear statement of the discussion topic introduced for public comment so that the public is aware of the limited nature of the discussion and that inappropriate posts are subject to removal, including but not limited to the following types of postings regardless of format (text, video, images, links, documents, etc.):
- comments not topically related;
- profane language or content
- content that promotes, fosters or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regards to public assistance, national origin, physical or mental disability or sexual orientation;
- sexual content or links to sexual content;
- solicitations of commerce;
- conduct or encouragement of illegal activity;
- information that may tend to compromise the safety or security of the public or public systems;
- content that violates a legal ownership interest of any other party.
I’m sure there are other issues that serve to discourage local governments from engaging the public through social media platforms. If you have an example of a perceived problem, please post your comment. But in general, looking to other states or agencies that have written fairly comprehensive policies is a good place for any locality to start. I’m also sure there are lawyers in your state or locality who will want to weigh in…