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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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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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