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The PRA and Nextdoor.com: 3 Things Public Officials Should Know Before They Log On


March 16, 2016 by Robert Sepler
Category: Public Records Act

The PRA and Nextdoor.com: 3 Things Public Officials Should Know Before They Log On

You’ve likely heard a lot about the public records concerns with social media, but Nextdoor, a relatively new social networking website focused on distinct neighborhoods, represents a new twist on social media that has some unique Public Records Act (PRA) implications.

At its core, Nextdoor offers a service similar to Facebook, with three key differences:

  • Members must verify their identity and address before using the service;

  • Each member’s messages can only be viewed by other Nextdoor members that live in the same physical neighborhood; and

  • The service is entirely focused on providing, in essence, a "community bulletin board" accessible only to members of a specific neighborhood.

Keeping these differences in mind, here are three things public officials should think about when using their personal Nextdoor accounts to communicate within their neighborhood about agency issues:

1. Are my messages on Nextdoor public records?

The answer depends on the content of the message. If it relates to “the conduct of government,” then the conservative approach is to assume that the message is a public record under RCW 42.56.010(3).

I consider this to be the “conservative approach” because it remains unclear the extent to which public officials can discuss government business on their personal social media accounts without opening up their messages and comments to disclosure under the PRA.

On the one hand, the PRA broadly defines “public record” such that most any discussion of government business likely relates to “the conduct of government.” On the other, it seems a stretch to say that public officials give up all of their privacy rights associated with their personal social media use when they enter public service.

The courts have yet to address this issue. So, until we have a clearer answer, I recommend that public officials follow the conservative approach: assume that a message relating to “the conduct of government” on your personal Nextdoor account is a public record subject to disclosure.

2. Do my messages on Nextdoor have retention value?

If they relate to “the conduct of government” and are therefore public records, your messages are subject to retention for the period required by the applicable records retention schedule. It’s important to recognize that you can’t rely on Nextdoor to retain the messages for the required time period given that messages are often edited or deleted long before the retention schedule says they can be destroyed.

For retention help, the Washington State Archives offers a records management advice sheet that is extremely useful in determining the retention value of social media records.

3. Can my public agency access the messages if a records request is made for them?

Unlike other social media platforms, messages made through a public official’s personal Nextdoor account are not publicly available, which make them difficult to produce in the event of a records request.

In some cases, public officials may cooperate and give access to their personal accounts. However, such access could violate Nextdoor’s terms of service, which are actively enforced. As recent events in Seattle demonstrate, a violation of the terms of service could even get the official's personal account suspended, making it even more difficult to access any public records.

But what happens if the public official leaves office, refuses to cooperate, or terminates his or her personal Nextdoor account? There is no clear answer.

Public agencies do, however, have some potential tools—albeit untested ones—at their disposal for such situations. For example, an agency might be able to seek a declaratory judgment, under chapter 7.24 RCW, declaring that the official’s messages are public records that belong to the agency.

Another option would be for the public agency to ask the public official to fill out an affidavit under oath declaring that he or she searched through their Nextdoor messages and identified and provided all posts that are public records or declaring that none were public records. See Nissen v. Pierce County. If a public official falsely declares that no public records exist, then certain criminal laws may be implicated, such as RCW 9A.72.040 (False Swearing) or RCW 40.16.010 (Injury to a Public Record).

Based on these considerations, I recommend that public officials avoid using their personal Nextdoor accounts to discuss agency business. However, I think that a public agency can operate an official Nextdoor account to provide information to or otherwise interact with members of the public, given that messages made through an agency’s official Nextdoor account appear not to be subject to the same privacy protections as messages from a personal account under Nextdoor’s privacy policy. So, the agency can disclose or retain its messages as needed in order to comply with the PRA and the applicable retention schedules.

Have a question or comment about this information? Let me know below or contact me directly at rsepler@mrsc.org.

About Robert Sepler

Robert interned with MRSC for a year before joining the legal team as a legal consultant in August 2015. He has worked with several local governments as a legal intern, including the Port Townsend City Attorney’s Office as well as the Land Use Section of the Seattle City Attorney’s Office. A Washington native, he earned both a B.A. and a B.S degree from the University of Washington and graduated magna cum laude from the Seattle University School of Law, where he was the Managing Editor of the Seattle University Law Review.

VIEW ALL POSTS BY Robert Sepler

Comments

"Here's a different question. When a public body emails something to each other, that is a public record, but what if they email using BCC, blind copy, to avoid having the chance of replies (meeting)? It seems to hide the full disclosure of exactly who was on the BCC."

guest on Apr 8, 2016 4:23 PM

"Tim - Just like other forms of communication with a public agency, I think that comments by members of the public on a post created by a public agency through their official Nextdoor account would likely be a public record, subject to disclosure and retention under the PRA and the applicable retention schedules."

Robert Sepler on Mar 17, 2016 2:35 PM

"What about the comments by non-government employees on posts by an agency?"

Tim Clemans on Mar 17, 2016 12:27 PM

3 comments on The PRA and Nextdoor.com: 3 Things Public Officials Should Know Before They Log On

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