Social Media and OPRA: Tips for Complying in the Digital Age
Aug 4, 2015 | Written by: | Share
Municipalities may be finding that their residents are more likely to turn to social media for news and updates instead of the traditional newspaper. However, posts by municipalities and elected officials on social media communicating with the public are not exempt from the requirements of the Open Public Records Act (OPRA).
Pursuant to OPRA, a “government record” is
any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. N.J.S.A. 47:1A-1.1 (emphasis added).
The definition is not perfectly tailored to the increasingly digital world and this can cause confusion when local governments attempt to identify government records. Ed Purcell of the New Jersey League of Municipalities has described it as “trying to put a round peg in a square hole” (from NJ.com article). The Legislature has not caught up to technology, so municipalities are left to interpret the intent of the statute. A broad reading of the definition can encompass social media activity as it also includes electronic information.
The next challenge for municipalities is record retention. Municipalities are required to retain government records under OPRA, which most likely includes social media posts. However this implicates the difficulties in maintaining records hosted by third parties (i.e., Facebook, Twitter, Instagram). A response to an OPRA request for the municipality’s Facebook or Twitter activity between certain dates and/or regarding certain topics would not be proper if it just simply referred the requestor to the website. The municipality actually has to maintain the records. I have several suggestions, although they are time-consuming or expensive. A website and media journaling company (like ArchiveSocial.com or Smarsh.com) will take care of the uncertainty on how to retain social media records. Unfortunately, they may be cost-prohibitive. The records custodian could be tasked with taking a “screen shot” or picture of the Facebook page or Twitter feed every day and saving such image files in designated and dated folders. Unfortunately, this is time-consuming and could place a burden on an already-overworked clerk.
However a municipality chooses to maintain records of social media activity, there are several suggestions that may make such task a little easier. First, the municipality should avoid creating new content for social networking sites. Anything that is posted on social media should come from existing materials that are already maintained for records law compliance. Therefore, in response to a request, a municipality could at least produce all documents or photos that were posted on its social media site. Second, the municipality should never delete posts or comments on Facebook. If a post becomes outdated or a comment is somehow abusive or offensive, (see my previous article regarding social media use and the First Amendment here) the municipality should “hide” the comment rather than deleting it, so that the comment will be available in response to an OPRA request. Even deleted comments and posts would be subject to OPRA. Earlier this year, the Vineland Police Department was criticized for deleting comments on its Facebook page after the death of Phillip White in police custody on March 31, 2015. The Township subsequently acknowledged that the deletion of comments violated OPRA and re-posted the deleted or hidden comments.
In summary, municipalities will have to adapt their records retention and stay up-to-date on advances in technology in social media in order to ensure compliance with OPRA and other record retention laws.
Tara St. Angelo's primary areas of concentration are municipal and land use law. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.