- Posted by: NiquelleAllen
- Oct 21,2020
- 0 comments
Open records laws are just starting to catch up to social media and this training will provide instruction on how to comply with FOIA and other transparency laws when the government is utilizing Social Media to conduct public business. Presented by Niquelle Allen, Director of Open Government, on October 21, 2020, at 2:00pm.
Link to Presentation: https://drive.google.com/file/d/1q5KavURsA04isv8cvriTqR8ZH7XHOO31/view?u...
Presenter's Case Notes:
West v. City of Puyallup
This case is about whether posts by an elected official on her personal Facebook page are public records subject to the Washington State Public Records Act (called the “PRA”).
In this case, Arthur West made a PRA request for records related to a City Council member, Julie Door’s Facebook page.
The lower court in this case held that the personal Facebook page was not subject to the PRA even though the owner of the page was an elected official. The Court of Appeals affirmed and articulated this standard:
A Public Official’s posts on a personal Facebook page CAN constitute a public record if:
- The posts relate to the conduct of government AND
- Are prepared within a public official’s scope of employment or official capacity.
The Court held that the City did not prepare the Facebook posts at issue here because Council member Door did not prepare the posts within the scope of her employment or official capacity as a City Council member. So, she was not conducting public business, nor was she furthering the City’s interest by the post, so it is not a public record.
Here are the facts of this case.
On March 25, 2016, West submitted a public records request to the City that asked for “All City related public records sent to or received at Council Member Door's ‘Friends of Julie Door’ Facebook site, 2014-2016, or any such records in the possession of the City.” The City conducted a search of its official Facebook page for any records sent to the Friends of Julie Door Facebook page and located no such records. The City also searched its archiving system for all documents sent and received with the term “Friends of Julie Door,” and located one message to a City email address inviting the recipient to “like” the Friends of Julie Door Facebook page. The City produced a copy of that message to West. The City disclosed no other documents.
West filed a PRA action against the City, alleging that the City violated the PRA by not disclosing posts on the Friends of Julie Door Facebook page. The City filed a summary judgment motion, arguing that the posts were not public records. In support of its motion, the City submitted a declaration from Door. Door's declaration stated that the Facebook page did not contain any information related to the conduct of City government or the performance of any government function. She explained that the Facebook page was not used or intended to be used to conduct any governmental function and had not been used or referenced by the City at City meetings or cited in support of any agency action. She also stated that the page was publicly accessible, and that the account had received only one immaterial private message. Finally, Door stated that the Facebook page was a campaign site used for campaign purposes or to provide information to her supporters.
The Requester of course disagreed. He provided the court with publicly available posts from the Friends of Julie Door Facebook page, which he argued contained information related to City business and public comments on a decision before the City Council. These posts fell into three general categories:
First, several posts referenced various issues that the City Council was considering, information about public events, links to Council documents, and a City Council meeting agenda.
Second, several posts referenced and contained links to the City's official Facebook posts about various issues and included information about a special meeting.
Third, a few posts referenced and contained links to the Puyallup Police Department's official Facebook posts.
In addition, the Friends of Julie Door Facebook page contained comments from individuals regarding a few of the posts. Door did not respond to any of the comments. After West's PRA request, Door posted a message stating that she was prohibited from answering specific questions about the City's actions on Facebook and that questions should be directed to Door's work-related email address and telephone number.
So even though the court found information related to city business Friends of Julie Door website, it was not prepared by Door in her official capacity, so it was not a City record. The court stressed that if the posts were made it her official capacity, it WOULD be a city record.
The court relied on two cases that held an elected-officials’ text messages on a private cell phone were public records when they were prepared in the owner’s official capacity and held that emails on a personal email account are public records if they meet the criteria for a public record.
DC law is clear on these issues, so this court’s reasoning should apply here.
JOHNSON V. CIA
The Plaintiff in this case sought records pertaining to the CIA’s Twitter account, @CIA.
The Plaintiff, Dr. Amanda Johnson, was a PhD candidate at MIT and a Research Affiliate with Harvard University when she made the FOIA request.
She sought several records related to the Twitter account, including emails, documents, training materials, and the like. Most relevant to our discussion topic today, she sought a list of user applications connected to the CIA’s public-facing Twitter account. This information is stored on the @CIA account page and can only be accessed by logging into the Twitter account.
The CIA denied this FOIA request. It had conducted a search of its own records and did not conduct a search of its Twitter account for the requested list. It responded to the FOIA request stating that it did not possess the requested record.
The Court found the search inadequate.
The list that the requester sought was on the Agency’s Twitter account. Since the Agency controlled the Twitter account, it should have searched for the record.
The court reasoned:
The makeup of the requested list of applications is controlled by the agency’s own decisions with regard to its Twitter account. This shows that Twitter has significantly relinquished control over this page to the Agency. Even if not hosted within the Agency’s record system, the Agency has enough ability to manipulate and use the record so that the list constitutes an Agency-controlled record for FOIA purposes.
The court ordered the CIA to produce the requested list. The rule to take away from this case is that since the agency exercises control over the social media account, it should be able to conduct a search of that account and provide related records to a requester.
Davidson v. Randall
This is a Virginia case concerning a public official's Facebook page. The Fourth Circuit affirmed the district court's judgment concluding that the chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of one of her constituents, Brian Davison, when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she administered. Davidson is a very active member of the community and raised ethical concerns about the School Board. He basically alleged that they were taking kickback money, so he was blocked from commenting. The court held that Randall acted under color of state law in banning Davison from the Chair's Facebook Page; and the interactive component of the Chair's Facebook Page constituted a public forum, and defendant engaged in unconstitutional viewpoint discrimination when she banned Davison's page from that forum.
This is not a FOIA case, but it is relevant to FOIA policy and government transparency. The Fourth Circuit’s view that Facebook is a public forum where free speech is permitted is something the government must keep in mind. Also, responding to messages or taking action in your official capacity as a government employee or official is state action that likely must be recorded and preserved.