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.
The AG warns that while there would not appear to be a prohibition against a board or commission member posting comments on the citys 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.
Public Records Law
Section 119.011(12), Florida Statutes, defines public records to include:
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 Courts 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 municipalitys 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 municipalitys 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 AGs 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)