The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.

Here's an update from the Open Records Blog -- a great blog that tracks state public records issues nation wide -- on the R-71 controversy.  The Post also provides Tim Eyman's perspective on the issue. 

Update 7/30

As noted by the Seattle Times, a Federal Judge has issued an injunction prohibiting the State from releasing the names of the persons who signed the R-71 petition.  According to the Times:

Judge Settle . . . gave what appears to be a nod to the strength of the referendum backers' case, writing that they "have sufficiently demonstrated a reasonable likelihood of success on the merits" of their First Amendment claim, and "a reasonable likelihood of irreparable harm if the names are released."

Here is an editorial from the Yakima Herald on this ruling:  "Open records means just that -- so release the names on R-71"

Update 6/11

The Secretary of State's office has weighed in on this debate on its blog, "From Our Corner."  The post summarizes of Elections Director Nick Handy's position and captures the conflicts this issue raises:

State Elections Director Nick Handy notes the the state has long been committed to open records and transparency in government, but says he’s unhappy with the thought of the petition process being used as a weapon to dampen voters’ participation in their constitutional right of petition.

***

“Nobody is comfortable with releasing personal information in situations like this, but it is part of transparency in government,” Handy says. “We hope people will keep their cool.”

Almost everyone would agree that information on campaign donations should be public, and it is.  Likewise, almost everyone would agree that information about how an individual voter voted should be private, and it is.  Signing a petition seems to fall somewhere in between, but under current law, no privacy exists. 

Original Post 6/10

In this Seattle Times article, the author puts the spotlight on a new trend of publicizing the names of persons who sign petitions for initiatives and referenda.  The stated goal of this tactic is to foster conversations between those who sign a petition and their friends and family who oppose the initiative or referendum.  Critics say the real goal is to intimidate potential signers who don't want to be publicly associated with a controversial issue.  The article quotes the president of a special interest group as noting:

"They are using the public-disclosure laws to punish people for participating in the democratic process — a core right."

As the Internet brings the prospect of a more transparent government, this state and other governments will face new questions about privacy and fairness that weren't implicated when most public access was to pieces of paper. 

Here is another article from Florida on whether governments should use web 2.0 sites:
"Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter"

Update 7/7/09

Spies should also stay off Facebook:  "British spy chief outed on wife's Facebook page" 

Update 6/2

Apparently Judges should stay off Facebook too.  Here's an article about a Judge who was reprimanded after accessing a litigant's Facebook site. 

Original Post  5/18

As the benefits of Web 2.0 personalized communication -- like Facebook, YouTube and Twitter -- become more apparent, public agencies and politicians are quickly looking to these tools to communicate with the public. Several Washington State agencies, including the Secretary of State and Attorney General (links Twitter, Facebook and YouTube at the bottom of the AG's homepage) use Web 2.0 sites such as Facebook.  Here's a PowerPoint presentation from the Secretary of State's office explaining the benefits of Web 2.0 sites. 

Use of Web 2.0 sites is not without risk, however.  As highlighted in this article about the advice of a city attorney in Florida to his city council -- stay off Facebook, there are concerns about whether the use of such sites affects a government's ability to comply with public records, records retention and open public meetings laws.  The city featured in the article concludes:

It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government.  For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology. 

Earlier this year the Obama administration highlighted some other issues with the "terms of service" users of YouTube and other Web 2.0 sites, such as one-sided reimbursement clauses and sites' use of cookies to track visitors.  Both were inconsistent with federal law or federal policy. 

Here is an article reviewing the use of Web 2.0 products by governments throughout the country.

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"

This information is for your eyes only.  Please destroy after reading.  It's not protected by privilege and is subject to discovery.

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

Here is a link to an article that includes these excerpts from those emails.

Justice has prevailed, at least sort of.  Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.  

This lawsuit follows a Ninth Circuit decision upholding a civil rights lawsuit by a police officer who sued the city he worked for after his text messages sent from his city-issued phone were released, even though the text messages were "public records."  Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). 

The key fact in the Quon case was that the City had created a reasonable expectation of privacy by failing to monitor text messages or limit personal use.  If a public agency allows the personal use of text messages, or even emails, the agency must make sure employees know those messages will be monitored to ensure the employees do not have a reasonable expectation of privacy in those messages.