Should Elected Officials Use Blogs and Web 2.0 Sites?
As I have previously noted, a little while back I asked Tim Ford, the AG's Open Government Ombudsman, about some of the legal issues related to the use of blogs and Web 2.0 sites.
Here is his email response (my questions are in black, his responses in red). Essentially, Ford states that the content is the public record, not the "look and feel" version that actually would appear on the Web 2.0 site. This addresses my biggest concern.
And here is Russell Wood's response to the retention issues. Again, Wood states that it is the content that is subject to retention (this is an edited version of the email).
The one remaining open issue is whether an elected official's personal blog becomes a public record if the official discussions agency business. Agencies also have to use extreme caution if they accept comments to ensure that comments are not edited or removed in a way that would violate the First Amendment. A clear policy is essential for this purpose.
Here is Olympian reporter Brad Shannon's blog post on the topic.
Here are my earlier posts on the topic:
"To Blog or Not to Blog -- that is the question"
"Lauderdale city attorney tells politicians: Stay off Facebook"
The one issue that I struggle with as a records manager is highlighted by the 4th point in Russel's e-mail. While companies / agencies can put safeguards in place to ensure that content and comments are retained for their approved retention periods, there is no way to manage content posted to 3rd party sites (Facebook, Twitter, etc) that is kept beyond that retention period.
For example, if an agency retains citizen comments for 3 years, they can enforce that by maintaining screenshots, or keeping the e-mail that is triggered from Facebook when someone makes a comment, even if the host site decides to purge comments after a shorter period of time (say 6 months).
If the host site determines to keep that comment posted and accessible for 6 years, that content cannot necessarily be purged by the agency (depending on the site / technology). This isn't a reason not to allow comments, but I would recommend that agencies go into this with eyes wide open, knowing that they will need to check for content on Web 2.0 sites related to issues that come up in relation to discovery or public records requests even if that content is past it's approved retention period. As long as the content is dwelling on a site controlled by an agency, I imagine it would be considered reasonable for the agency to produce it - just the same as would happen if 1 of 20 paper copies of a document was kept past its retention period.
Kyle, thanks for raising that point. I have been focused on what agencies have to retain and how to retain it. But you are right, this will create one more place agencies will have to search to discover responsive records. It is yet another reason why the legislature needs to look at this issue. One legislative solution would be to determine comments posted on the site are not the agency's public records unless the agency somehow uses the comment. And when an agency uses the comment, it could cut and paste the comment into a standard word document, which it could then destroy at the proper time. If the agency takes these steps, the law should provide that the agency does not need to search the comments in response to the PRA request.