OPEN GOVERNMENT -- What could be more open than Facebook?  And yet a city attorney is warning city officials about using that forum for discussions of official business.

The warning comes from Florida, but as is evident in this memo from Fort Lauderdale City Attorney Harry Stewart to his city council, it addresses many of the same concerns that would arise in California.

Florida’s Sunshine Law applies to a formal or informal gathering of two or more members of a public board or commission to discuss some matter on which foreseeable action will be taken by the board or commission. The three basic requirements set forth in Section 286.011, F.S. are (1) meetings of public boards or commissions must be open to the public, (2) reasonable notice of such meetings must be given and (3) minutes of the meeting must be taken promptly and recorded. The AG notes that though the Sunshine Law does ordinarily apply to meetings of two or more members, because the Florida Supreme Court has stated the law is to be construed “so as to frustrate all evasive devices”, the physical presence of two persons is not always necessary. See also: AGO 89-39, in which the AG opined that private discussions via email between board members about board business is prohibited under the Sunshine Law. That Opinion analogized the use of such private email discussions to private telephone conversations or the exchange of written memoranda between two or more members on topics to come before the board– all of which conduct is regulated and prohibited by the Sunshine Law.  See also: AGO 08-07, in which the AG’s office concluded that use of a website blog or message board to solicit comments from other members of the board or commission by their responses on issues that would come before the board triggers the Sunshine Law.

The AG warns that “while there would not appear to be a prohibition against a board or commission member posting comments on the city’s Facebook page, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.” (AGO 09-19).
Engaging in an exchange of ideas or discussion on such matters is a slippery slope – and comments made on the site by one member in reaction to the letters, emails or personal postings of another member may be broadly construed as such an exchange or discussion and thus constitute a violation of the Sunshine Law.  See also: AGO 01-21, in which the AG noted that although the preparation and distribution of individual city council members’ “position statements” is technically in and of itself not a violation of the Sunshine Law, to the extent the position statement is a response (or construed as a response) to another members’ statement, it violates the Sunshine Law and thus is problematic and strongly discouraged. The AG concluded that the best practice is for each member to discuss his or her position in the context of an open meeting.

Similar concerns regarding record retention and Sunshine Law violations would abound in the undertaking of a personal website by a Commissioner if information on the site fell within the definition of “public records” as defined in Florida Statutes and caselaw.

The memo also comments on the publlic information and records retention consequences of citizens' FaceBook visits to the city's official page.

The Florida Attorney General’s Office recently released Attorney General’s Opinion (AGO) 09-19 dealing with the creation of municipal Facebook pages and the implications this would have under Florida’s Public Records and Sunshine laws. Facebook is a social networking website on which users create profiles, interact with one another in real-time and are able to build networks of “friends”. The analysis contained below is also applicable to participation by the City or individual public officers in websites and blogs generally. We felt it important to share this with you as the advent of new technologies, and the desire to participate in them, bring about new issues relative to our duties under Florida law.

Public Records Law

Section 119.011(12), Florida Statutes, defines “public records” to include:

All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

The AG opined that a municipality may create a Facebook page if it finds there is a valid municipal purpose. The Opinion, relying on the Florida Supreme Court’s interpretation of a public record encompassing all material made or received by an agency in connection with official business and used to perpetuate, communicate, or formalize knowledge, went on to say that indeed information on a municipality’s Facebook page would most likely constitute a public record under the law – but such determination would need to be made based on the information posted on the site.

As for the “friends” that are part of this site, whether or not the content of their postings and their pages are deemed public records would also be a determination based upon whether or not the information contained therein was made or received by an agency in connection with official business. Because of the likelihood that such information would be deemed public record, the AG suggests posting a warning on a municipality’s Facebook page regarding the implication of public records law on the material posted and shared by “friends”.

Public records law also imposes a duty of disclosure and retention upon every person who has custody of a public record. Custody has been described as having “supervision and control over the document or hav[ing] legal responsibility for its care, keeping or guardianship.” (AGO 08-07).

Maintaining such a Facebook site, indicating that the City is aware of and has approved the content, places responsibility on the City to ensure the records are maintained in accordance with public records law as well as the General Retention Schedule GS1-SL for State and Local Government (providing retention periods for administrative records).

Though the AG’s Opinion asserts information contained on the Facebook site and deemed a public record would have to be retained in accordance with the GS1-SL schedule, as this is a new technology in the eyes of the law, it is wholly unclear what the applicable time period for retention would be as the GS1-SL does not specifically address website content.
Indeed, the recommended retention periods could vary based on the content.

There exists an ancillary, though important issue, of whether or not the City even has the technological capability to retain the content of the Facebook site. The City does not have ownership, control or affiliation with this site and research would need to be done to determine if City retention is even possible technologically and financially.  See also: AGO 08-07, in which the AG opined that an individual council member who created posted comments and emails on a website for which the council member served as webmaster was responsible for ensuring that the information was maintained in accordance with both public records law and the policies and retention schedule of the City where the City had no ownership, control or affiliation with the website.

(Hat tip: Kimo Crossman)