WAPA S PRING C ONFERENCE A PRIL 21, 2011 P RESENTER : J OE L EVAN, MRSC L EGAL C ONSULTANT 1 (206)

MRSC P ROGRAMS Inquiries Publications Web Site – Library Training Special Projects (206)

What to do Call us us (206)

How to Reach Us Phone(206) MRSC (6772) Web Mail2601 Fourth Avenue, Suite 800 Seattle, WA Fax(206) (206)

S OCIAL M EDIA AND THE P UBLIC R ECORDS A CT What is social media? How does the PRA apply to social media? Key strategies from policies of other local governments. (206)

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 (206)

Many Types of Social Media Blogs Facebook Twitter YouTube Flickr Shutterfly MySpace LinkedIn (206)

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 (206)

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 (206)

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 (206)

Electronic Records WAC : 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. **** (206)

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 s, 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 ; WAC (206)

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 s to create PDF or TIFF files (206)

Court Guidance on E-Records O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010) The court addressed a situation involving an exchange, including s received and sent from a city councilmember’s personal computer and personal account – the requester requested the s 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 (1).RCW (1) The city was required to provide the requested metadata that was part of the subject exchange. (206)

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 (206)

Question: How do you respond to a PRA request related to the county’s Facebook page? (206)

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? (206)

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 (206)

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? (206)

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 (206)

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 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 (206)

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 confirmations of each post or comment Consider such issues in any service contract with vendors or social media site operators (206)

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 (206)

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 (206)

Possible Retention Options Option: The county should establish a separate county account for social media tools Also consider using or developing applications that capture social media records (206)

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. (206)

Possible Retention Options Option: Manual retention Use of screen shots, spreadsheets (206)

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 (206)

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 (206)

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? (206)

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) (206)

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 ) (206)

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 (206)

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 (206)

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 (206)

Additional Resources MRSC Website ( Social Media Electronic Public Records Retention Open Government Advisor MRSC Publications: Public Records Act for Washington Cities, Counties, and Special Purpose Districts (November 2009) (206)

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) (206)

Additional Resources Secretary of State – Washington State Archives website Electronic Records Management - Advice and Resources Blogs / Wikis / Facebook / Twitter / Web 2.0 Management Imaging / Digitization / Scanning Website Management Washington Attorney General’s website: Open Records & Open Meetings Deskbook 38 (206)

Contact Info J OE L EVAN, MRSC L EGAL C ONSULTANT (206) (206)