Social Media and Public Records Laws

Social media is ubiquitous these days. Facebook alone, for example, has nearly 1.5 billion monthly active users. Given social media’s widespread use, it is not surprising that some municipalities have sought to harness its power as an effective tool for communicating with the public. Municipalities that use social media, however, should keep in mind that communications on such sites are not immune from open access laws. On the contrary, communications on municipal social media may qualify as public records that are subject to freedom of information requests.

Where social media is concerned, the key issue that municipalities must remember is that it is the content of the communication that matters, not its format. Consequently, the fact that social media is often perceived as ephemeral does not categorically exempt social media from public records laws. The definition of “public records” in Maine’s FOAA law, for example, makes this clear. That statute broadly defines a “public record” as, among other things, “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained” and that is in the possession or custody of a public entity. In short, then, municipalities should apply the same record retention principles to communications on social media that they apply to communications in other formats – and look to the content of the communication, rather than its format, to determine their retention obligations. So, for example, a post from a member of the public containing a substantive complaint would likely need to be retained longer than a post containing a simple request for information or conveying other information of short-term value. To help manage their retention obligations, municipalities can take steps to limit the scope of what may be posted on social media, such as by clarifying that social media is not to be used for filing complaints or for other official communications with the municipality. By doing so, municipalities can ensure that their public record obligations do not become a reason to “unlike” social media.