In today’s world of technology and communications, communities are increasingly reaching out to their residents and marketing their services through social media. It has become common for cities, towns, and almost all forms of local, state, and federal government to have an active presence on Facebook, Twitter, Instagram, LinkedIn, and other popular social media sites. This presence provides communities with an efficient and cost-effective way to communicate with constituents, market events and operate transparently. and distribute important or urgent public notices. However, maintaining a social media presence can have unexpected consequences for your community, such as establishing a responsibility to ensure that communication on social media by city or village council members does not violate the Open Gatherings Act.[1] This article examines certain legal requirements arising from a government agency’s use of social media.
Social media communications are subject to FOIA
The Freedom of Information Act[2] (FOIA) subjects all “public records” to disclosure unless specifically exempted by an explicit legal exception.[3] As a self-proclaimed pro-disclosure law, exceptions to disclosure under FOIA are narrowly construed. Although FOIA was written decades before the emergence of social media, it defines the term “public record” broadly to include communications on social media.
For FOIA purposes, a “public record” means a “writing” that, among other things, “is created, owned, used, held or maintained by a public entity in the capacity of an official [as opposed to personal] Function.”[4] Likewise, the word “writing” is broadly defined as “writing, printing, photographing, photographing, photocopying, and any other means of recording and includes letters, words, images, sounds, or symbols…”.[5] Just as the courts have determined that text messages can meet the legal definition of a “public record,”[6] Electronic communications via social media may also constitute public records under and subject to FOIA.
Storage of Social Media Communications
Perhaps more worrisome is the fact that electronic communications via social media, like any other public record, must be retained by the public entity under record retention laws.[7] Public records of local government entities actually belong to the state and may only be disposed of in accordance with a properly adopted record retention plan.[8] Failure to properly retain public records may constitute a misdemeanor.[9]
As you can imagine, preserving social media communications can present practical challenges, especially for social media messages or content that are only temporarily or automatically deleted (e.g., Snapchat). Proper retention requires that notices be retained either electronically or in paper form. Retention of Facebook, Instagram, Twitter and LinkedIn communications generally requires archiving tools and personnel to store hard copy or digital copies, or hiring a company to provide social media archiving services. For Snapchat or other similar social media where the communication is ephemeral, a preservation copy of the communication must be made before the content is lost (i.e. before posting).
The Open Gatherings Act
Social media communication can also raise serious concerns about open meeting requirements under the Open Meetings Act (OMA).[10] As with FOIA, the OMA is designed to promote accountability in government, and the law is stretched in favor of openness.[11] The OMA is broad enough to apply to members of a governing body who share opinions or exchange ideas via social media.
Under the OMA, all meetings of a public body must be public and all deliberations of a public body must be held in public session.[12] The courts have interpreted “consultation” very broadly to mean simply “exchange of views” or “discussion” of matters.”[13]
The Michigan Court of Appeals applied these requirements to group emails between members of a publicly elected parks commission, finding that the email exchanges constituted private, closed meetings and improper deliberations in violation of the OMA.[14]
The facts of the case concerned four members of a public body, who formed a quorum and exchanged numerous emails on matters that would soon be submitted to the body for consideration.[15] Members were actively engaged in thoughts and plans on how to deal with the issues. In subsequent meetings, matters were dealt with as discussed in the emails. The court found that the group emails constituted an illegal “meeting” under the OMA and that the defendants had violated the OMA by “deliberating” outside of a public meeting.
Although in this case the communication by the members of the public body took place via e-mail, the results would be the same if the communication had taken place in a different electronic form, e.g. B. through posts or messages on social media. In order to comply with the OMA, the communications of these members of public bodies would have had to be made at a public meeting after proper posting of a public notice and otherwise comply in all respects with the OMA.
Municipalities should recognize that record-keeping requirements extend not only to email and text messages, but to all forms of electronic communication – including social media. Municipal officials should consult with their legal counsel to establish social media policies that address all aspects of the use of such services by the municipality, its employees and members of its governing body. Officials should exercise caution when engaging in social media communications regarding public affairs to avoid violating the OMA.
[1] Although this article focuses solely on the Open Gatherings Act, the Freedom of Information Act, and record retention considerations, social media use can raise other legal concerns as well.
[2] Law 442. Michigan Public Records. 1976. as amended
[3] Swickward v. Wayne County Medical Examiner, 438 Mich 536, 544 (1991)
[4] MCL 15.232(e)
[5] MCL 15,232 (h)
[6] Flag against city of Detroit. 252 FRD 346 (ed. Mich. 2008)
[7] However, depending on the content. It is possible that some communications may constitute non-recordable materials under record retention periods that would circumvent record retention requirements and allow for their disposal.
[8] See Section 11(2) of the Michigan Historical Center Act. Law 470, Michigan Public Records, 2016: MCL 399.811(2)
[9] MCL 750.491
[10] Law 267, Public Acts of Michigan, 1976, as amended
[11] See Wexford County Prosecutor vs Pillory, 83 Mich App 197 (1978)
[12] MCL15.263
[13] See Hoff v. Spoelstra, (2008 WL 2668298) (Mich App July 8, 2008): Ryant v. Cleveland Twp., 239 Mich App 430 (2000). Swickward v. Wayne County Medical Examiner, 438 Mich 536, 544 (1991)
[14] See Markel vs. Mackley. (2016 WL 6495941) (Me App 11/01/2016)
[15] Although the emails in this case were exchanged among a quorum of Parks Commission members, note that in certain circumstances the OMR may be implicated in acts involving less than a quorum of a public entity. See e.g. B. Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich App 459 (1988).
