Transcript Public Records Disclosure

WAPA SPRING CONFERENCE
APRIL 21, 2011
PRESENTER:
JOE LEVAN, MRSC LEGAL CONSULTANT
www.mrsc.org (206) 625-1300
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MRSC PROGRAMS
 Inquiries
 Publications
 Web Site – www.mrsc.org
 Library
 Training
 Special Projects
www.mrsc.org (206) 625-1300
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What to do
Call us
E-mail us
www.mrsc.org (206) 625-1300
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How to Reach Us
 Phone (206) 625-1300
1-800-933-MRSC (6772)
 E-mail [email protected]
 Web
www.mrsc.org
 Mail
2601 Fourth Avenue, Suite 800
Seattle, WA 98121
 Fax
(206) 625-1220
www.mrsc.org (206) 625-1300
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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.
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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
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Many Types of Social Media
 Blogs
 Facebook
 Twitter
 YouTube
 Flickr
 Shutterfly
 MySpace
 LinkedIn
www.mrsc.org (206) 625-1300
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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
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PRA Applicability
Under the Public Records Act, a “public record” is
defined broadly to include any:
1. Writing
2. Containing information relating to the conduct of
government
3. That is prepared, owned, used, or retained by
that government regardless of physical form or
characteristics
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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
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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.
****
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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
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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
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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.
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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
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Question:
 How do you respond to a PRA request related
to the county’s Facebook page?
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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
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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
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Guidance from the State Archivist
Source: Electronic Records Management: Blogs, Wikis,
Facebook, Twitter & Managing Public Records (2009)
1. 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
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Guidance from the State Archivist
2. 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
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Guidance from the State Archivist
3. 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
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Guidance from the State Archivist
4. 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
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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
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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
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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
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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
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Possible Retention Options
Option:
 Manual retention
 Use of screen shots, spreadsheets
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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
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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
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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
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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)
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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 44-1405001)
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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
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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
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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
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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
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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
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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
www.mrsc.org (206) 625-1300
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Contact Info
JOE LEVAN, MRSC LEGAL CONSULTANT
 [email protected]
 (206) 625-1300
www.mrsc.org (206) 625-1300
39