The Virginia Freedom of Information Act
& Social Media
Records,
Meetings, and Best Practices
What exactly is “social media” for the purposes of FOIA?
Can social media posts be public records?
What about social media posts from other people?
What about record retention?
Can a meeting be conducted on social media?
Tips for Best Practice
Where
do I go for more information?
The Virginia Freedom of Information Advisory
Council receives many questions about how to handle requests for copies of
social media posts and questions about whether the use of social media may
constitute a meeting subject to the Virginia Freedom of Information Act (FOIA).
This guide compiles answers to a number of frequently asked questions as a
reference to help determine the FOIA implications for social media use and to
provide tips for best practice and additional resources.
What exactly
is “social media” for the purposes of FOIA?
FOIA does not define “social media,” but the
Code of Virginia defines a “social media account” as “a personal account with
an electronic medium or service through which users may create, share, or view
user-generated content, including, without limitation, videos, photographs,
blogs, podcasts, messages, emails, or website profiles or locations.”[1] This definition covers
many of the popular sites and technologies we use every day, such as Facebook
and Twitter, but also many less commonly used sites and technologies that
continue to proliferate and develop.
Unlike many older forms of communication,
various technologies used for social media not only generate records, but also
allow multiple users to communicate simultaneously. For example, a paper letter
sent through regular mail could generate a record, but does not provide for
simultaneous communication. Conversely, a conference call allows simultaneous
communication but does not generate a record unless someone specifically takes
steps to record the conversation. By contrast, the use of public forums, email
messages, Facebook, Twitter, and other forms of social media may both create
records and allow simultaneous communication between multiple people. For this
reason, different forms of social media may implicate both the public records and
the public meetings provisions of FOIA.
Can social
media posts be public records?
FOIA does not distinguish between social
media and other types of records. As is often the case, technology has
developed more quickly than changes in the law. However, the term “public
records” is defined broadly to include all types of records that are prepared,
owned, or possessed by a public body or its officers, employees, or agents in
the transaction of public business.[2] The definition is broad
enough to include social media activity. Presuming the posts were made (1) by a
public body, official, employee, or agent and (2) in the transaction of public
business, then those posts are public records subject to FOIA.
Examples of posts that are “public records” subject to FOIA:
· A town council posts notice of its upcoming
public meetings on the town’s Facebook page.
· A state agency posts a link to proposed
regulatory changes on Twitter.
· A public employee uses Facebook messages or
email to discuss public business with a fellow employee or a citizen. (Note
that such messages are public records regardless of what account is used by the
public employee.)
Examples of posts that are NOT “public records” subject to FOIA:
· Personal messages that do not pertain to
public business (again, regardless of the account used).
· Political messages, such as an announcement
of a person’s intent to seek election or reelection to public office.
What about social
media posts from other people?
The definition of “public record” includes
records merely “in the possession of a public body, its officers, employees or
agents in the transaction of public business.” Following that concept, posts
made by other persons on the social media account of a public body, official,
or employee may be public records IF they are in the transaction of public
business.
Examples of posts by others that are “public records” subject to FOIA:
· A citizen makes a FOIA request on a public
body’s Facebook page.
· A citizen posts a recommendation on a public
matter to a public body’s Twitter account.
· A lobbyist sends email to all members of a
public body concerning a matter on the public body’s next meeting agenda.
Examples of posts by others that are NOT “public records” subject to
FOIA:
· Various forms of “spam”—such as unsolicited
advertisements for a private business posted by a private party onto a public
body’s Facebook page.
· “Trolling”—such as purely derogatory comments
or attacks on personal character or other “off-topic” posts designed to incite
an inflammatory response that do not relate to the transaction of public
business. (Note that posts using harsh or pejorative language may still be “public
records,” as it is the content that matters, not the way in which it is
expressed.)
· Posts that are purely personal in nature and
do not concern public business (social events with family and friends, jokes,
pictures of pets, etc.).
What about
record retention?
Record retention is addressed under the
Virginia Public Records Act, which is administered by the Library of Virginia. Please
see the Library’s “Records Management and Social Networking Sites” guide,
available on the Library’s website at https://www.lva.virginia.gov/agencies/records/
tips/documents/socialmediatips.pdf.
Can a
meeting be conducted on social media?
As noted previously, various types of social
media allow multiple people to communicate simultaneously. The definition of “meeting”
in FOIA includes:
work sessions, when sitting physically, or
through electronic communication means . . . as a body or entity, or as an
informal assemblage of (i) as many as three members or (ii) a quorum, if less
than three, of the constituent membership, wherever held, with or without
minutes being taken, whether or not votes are cast, of any public body.
The definition of “meeting” excludes
gatherings of employees of a public body, gatherings of members where there is
no discussion or transaction of public business, and certain public forums,
candidate appearances, and debates.[3] The definition of “electronic
communication” means “the use of technology having electrical, digital,
magnetic, wireless, optical, electromagnetic, or similar capabilities to
transmit or receive information.”
Reading these definitions together and
considering the capabilities of social media, it is clear that if social media
is used to discuss or transact public business by three or more members of a
public body (or by a quorum, if the quorum is less than three members)
assembled together simultaneously (in other words, through “real-time”
communications), then that use of social media would constitute a “meeting”
subject to FOIA. As such, it would have to comply with rules for electronic
meetings set forth in § 2.2-3708.2, which include various heightened procedural
requirements and limitations.[4]
Tips for
Best Practice
· Consider the “consequence of choice”—If a
public official or employee uses social media in the transaction of public
business, the official or employee may be creating public records that are
subject to public disclosure as well as record retention rules.
· Consider record retention of social media whenever
possible to facilitate future FOIA requests.
· Avoid inadvertent meetings—If a form of social
media allows multiple simultaneous users, then members of a public body using
social media could unintentionally conduct a meeting by discussing public
business if a sufficient number of other members also participate
simultaneously.
· Avoid “meetings within a meeting”—Using social
media and devices such as cell phones, members of a public body can be holding
a public meeting while assembled together at a public place and, at the same
time, be conducting a closed meeting through social media.[5]
Where do I
go for more information?
Record
retention. As mentioned
previously, record retention is addressed under the Virginia Public Records Act
and administered by the Library of Virginia. The Library’s website has a
Records Management section (http://www.lva.virginia.gov/agencies/records/) that
includes contact information, record retention schedules for both state
agencies and localities, forms, publications, guidance documents, and other
resources.
First
Amendment; freedom of speech and public forum issues. It is the understanding of FOIA Council
staff that litigation has been brought in multiple jurisdictions, including
Virginia, on issues concerning the use of social media by various public
officials and public bodies. In addition to the use of social media in the FOIA
contexts discussed above, some other issues that have been raised include (1)
whether a public official or public body must allow others to post on the
official’s or public body’s social media account, (2) whether posts may be
edited, hidden, or deleted based on content or by user, (3) whether
restrictions may be placed on the use of profanity or insulting language, and
(4) whether users may be blocked from accessing or posting. Because all of
these issues fall outside of FOIA and therefore outside the statutory authority
of the FOIA Council, FOIA Council staff recommends that public bodies and
public officials discuss these types of issues with their own attorneys.
Contact Information for the Virginia Freedom of Information Advisory
Council:
|
Pocahontas Building, 10th Floor |
Telephone 804-698-1810 |
|
900 E. Main Street |
Toll-free
866-448-4100 |
|
Richmond, VA 23219 |
Fax 804-698-1899 |
|
Email: foiacouncil@dls.virginia.gov |
|
July 2019
[1] Va. Code § 23.1-405 (providing a definition in the context of students at public institutions of higher education); see also § 40.1-28.7:5 (providing a nearly identical definition in the context of public employees’ social media accounts).
[2] Va. Code § 2.2-3701, “‘Public records’ means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.”
[3] Va. Code § 2.2-3701, “‘Meeting’ or ‘meetings’ means the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. Neither the gathering of employees of a public body nor the gathering or attendance of two or more members of a public body (a) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body, or (b) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting, shall be deemed a ‘meeting’ subject to the provisions of this chapter.”
[4] Please see the Electronic Meetings Guide published by this office for details regarding electronic meetings.
[5] Va. Code § 2.2-3701, “‘Closed meeting’ means a meeting from which the public is excluded.”