Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

As more state and local governments are utilizing the internet and social media to reach out to citizens, Washington and 14 other states recently reached an agreement with Facebook that changes the website’s standard user agreement as applied to state and local agencies. In a press release from his office, Washington State Attorney General Rob McKenna acknowledged the growing importance of Facebook in helping state agencies and local governments to communicate with constituents.

Nearly a year in the making, the amended terms alter Facebook's standard terms as applied to state and local governments utilizing Facebook Pages for official use. Facebook Pages are different from the average individual person’s profile in that they are intended to promote businesses and other commercial, political, or charitable endeavors. The agreement, already in effect and applied retroactively to governments with an existing Facebook presence, eliminates Facebook’s choice of venue and governing law clauses while limiting a government agency’s indemnification of Facebook for the agency’s actions to the extent permitted in the agency’s jurisdiction. In Washington, the site’s general indemnification terms, protecting Facebook from “claims related to [a government’s] actions, content or information on Facebook,” may apply to local governments and state agencies as these entities generally have authority to contract for indemnification.

While this agreement resolves some issues facing governments interested in developing a social media presence, there will likely be continued growing pains as bureaucratic organizations deal with the increasingly complex electronic world. Local governments will continue to manage concerns on many social media fronts, including public records in cyberspace and user comments on Facebook and Twitter posts.

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A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”

The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.

The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.

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The FCC’s Government Operations Director Eugene Huang recently discussed how the forthcoming National Broadband Plan broadband access will help transform how citizens interact with the federal government. In his comments at M.I.T.’s Center for Future Civic Media, Huang discussed the need to make primary legal documents “free and publically available online.” Huang noted the need to stream government meetings, public hearings, and town hall meetings online as well as provide public government data to the internet in machine-readable formats.

Huang’s comments hint at a number of broad initiatives in broadband access, open government, and social media use that will be contained in the National Broadband Plan when it is released later this month. Development of the National Broadband Plan is an FCC project authorized in the 2009 American Recovery and Reinvestment Act. Huang’s speech can be found online at the FCC’s Broadband blog.

The National Broadband Act, due out March 17, will likely have some impact on local governments. Although many local jurisdictions are far ahead of the federal government. in providing data access and streaming meetings, as Washington, D.C., opens up, local governments are likely to face increasing pressure from citizens to provide similar services and information. Of course, as we have discussed before, new and improved access and communications, such as blogs and twitter feeds, will also have far-reaching impacts on public records management responsibilities for local governments.

We’ll provide more information and analysis as details of the National Broadband Plan become available during the next two weeks.

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The Seattle Times reported this week that the United State Supreme Court announced that it would consider whether an employee has a right to privacy when sending and receiving text messages on an employer-owned electronic device. The case is City of Ontario v. Quon, and is an appeal from a 2008 Ninth Circuit ruling (Quon v. Archwireless Operating Company, Inc.). In that case the Ninth Circuit held that an employee’s right to privacy outweighed the public employer’s right to audit text messages sent from its employer-issued pagers. See our 2008 news alert for more information about the Ninth Circuit ruling. 

The U.S. Supreme Court is expected to hear arguments in the case in the spring and issue a decision by the end of June 2010.

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In a recent Ethics Opinion, the Judicial Ethics Advisory Committee authorized blogging by judges. The Ethics Opinion advises, however, that any judge that engages in blogging should consider posting a disclaimer that the opinions expressed are only those of the author and should not be imputed to other judges and should outline constraints that the judge is subject to in order to avoid ex parte communication. 

See our October 23, 2009 blog entry regarding the City of Federal Way v. Koenig case for information regarding the applicability of the Public Records Act to the judiciary. 

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The Kitsap Sun recently reported that on October 28, 2009, the Kitsap County Parks and Recreation Department’s blog (launched September 8, 2009 and hosted on a County intern’s Facebook site) was taken down. According to the article, the decision to take the blog down stemmed partially from the electronic records management advisory issued by the Secretary of State’s office. See our November 4, 2009 blog posting for more information regarding the advisory. The other reasons cited include the need to update the County’s communication policy to cover statements made by employees on third-party sites and the County’s information technology systems so the County can track records created through various social media.

Kitsap County’s decision follows a similar decision made by Alachua County in Florida. According to the Gainesville Sun, Alachua County recently put a ban on staff conducting any county business using text messages – whether using a county-issued cellular phone or a personal cell phone. The reason cited for the ban is the fact that text messages are public records and the county’s computer system has no way to track and save the messages.

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The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter. 

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.

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A 'Tweet' OPMA violation?

Public perception counts, technical compliance may not be sufficient. Web 2.0 creates risks and challenges.

"'Tweets' bring possible illegal meeting to light. 
Twitter Post reveal a gathering of Mukilteo
City Council members after their official meeting."

Headlines like this recent headline in the Everett Herald hurt public trust, even when no laws are broken.  A post on the Open Records Blog (scroll down to the third post) demonstrates how at least some members of the public will react.

To ensure compliance with the OPMA, the Public Records Act and the retention laws, elected officials and public employees must make sure they understand all of their legal requirements before they use Web 2.0 sites. 

Here are some additional resources on the use of Web 2.0 sites by Elected officials and public employees:

City Council Handbook Wiki

Gov Social Media Wiki

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As illustrated  in this Everett Herald story, a Mukilteo councilmember’s micro-blog serves to remind us about a lesson public officers and employees have been told for decades.

Common Sense Advice Over the Decades

1969: Don’t write anything down that you don’t want to see on the front page of the paper.

1979: Don’t record anything you don’t want to see on the front page of the paper.

1989: Don’t put anything in an email you don’t want to see on the front page of the paper.

1999: Don’t take pictures of anything you don’t want to see on the front page of the paper.

2009: Don’t tweet or post anything you don’t want to see on the front page.
 

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As governments put more and more information on the web, governments should be focused on how to make that information usable to help the public understand how it relates the decision-making process.  As noted in this post, Transparent or Translucent, simply loading data onto websites can serve to obscure how governments make decisions  rather than give the public access to how and why those decisions are made.  This can result in translucent government, not transparent government. 

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Australia has some of the most sophisticated and advanced laws on document retention and access. Therefore, it was not surprising to find this guidance on records retentions issues for government web 2.0 sites coming from the Australian government:  Records Management and Web 2.0

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Update 7/12/09

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.

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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"

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Last month I had the pleasure of teaching two classes to city officials at the Association of Washington Cities Conference in Spokane.  One hot issue raised by the city councilmembers was the use of blogs and Web 2.0 cites.  I cautioned against their use because the Public Records Act issues are unresolved. 

Another topic at the conference, however, was about the use of blogs and Web 2.0 cites.  The presenter, Lakewood City Councilmember Walter Neary, has his own blog, Electing2Blog, Blogging by Elected Officials, dedicated to this topic. 

When some of the councilmembers who attended my sessions cautioned about the risks of blogging created by the PRA,  ... well here is Councilmember Neary's take "A Funny Thing Happened on the Way to Public Outreach." 

Here is another take on the exchange from the Olympia Time blog:  "The secret key to why city council members are told not to blog" 

Someone has also started a WIKI page on the topic entitled "Social Web handbook for Washington State local electeds"

I will post the questions I have asked Tim Ford, the AG Open Government Ombudsman, about the legality of this topic shortly. 

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Here is a very helpful new blog, "Unredacted," that records the Open Government Ombudsman's informal opinions on Open Government issues.   Transparency at work. 

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