Elected Officials Guide — What’s Personal and What’s Public?
January 9, 2020
Category: Administrative and Elected Officials , Open Public Meetings Act , Public Records Act
What’s personal and what’s a public record when you’re an elected official? Social media platforms and cell phones have added complexity to compliance with the Public Records Act (PRA) in Washington State in the last decade. This blog will cover questions about the use of social media and cell phones with regards to privacy and public records and focuses on their use from the perspective of an elected official. MRSC maintains a number of webpages regarding the Public Records Act and records retention.
Cell Phones and Computers: Agency-Owned or Personal?
Your jurisdiction may have a policy on whether elected officials are to use an agency-provided cell phone for public business or are expected to use their personal cell phone. If you have a choice, it may be ‘cleaner’ to use an agency-provided phone. This keeps all activity subject to the PRA in one place and might ensure you get a better night’s sleep in the long run by keeping your personal communications separate from your public ones.
If you do use a personal device, what do you need to be aware of? That any messages concerning ‘agency business’ that staff or elected officials may communicate about via text or other messaging apps on a personal cell phone is likely to be considered a public record. The 2015 decision in Nissen v. Pierce County clarified this by stating:
text messages sent and received by a public employee in the employee’s official capacity are public records of the employer, even if the employee uses a private cell phone.
The Twist: Even if you have an agency phone and email account that you use for agency business, be aware that if you mingle your official email account with your personal account, your personal account could then be subject to a public records request. However, you don’t have to let someone else search your personal account. You are allowed to conduct the search of your personal account and retrieve and submit any requested records; you should be asked by your agency to sign an affidavit about your search. Another option is to use a dedicated app on your personal device that remotely accesses your agency email account.
What if I use my personal computer for agency business?
The records on your computer would be subject to PRA requests and any agency business records would need to be turned over to your public records officer unless you conduct the business via a remote connection to the agency’s server and do not save items to your personal computer. If this isn’t possible, and you must use your personal computer, keep a separate file on your personal computer of any agency business.
Whose account is it?
Social media platforms may have played a role in your electoral success, and you may want to continue to engage with residents via those methods. It will be cleaner for you and easier for records staff if you keep campaign social media accounts separate from accounts for agency business. Keeping your ‘official’ account focused on agency business makes responding to records requests simpler and less intrusive than if your social media account is used for both personal and public business once you become an elected official.
If you choose to have a separate personal social media account, be rigorous with your boundaries and refrain from discussion or mention of agency business on that account, otherwise the purpose of your separate accounts will be defeated. Be conservative about your engagement via these platforms and avoid soliciting opinions about public business on your personal accounts.
Elected officials may not lawfully block constituents from accessing their official social media accounts.
Can I delete those memes and nasty comments?
Negative comments, offensive photos, memes, and heated discussions are regular features of social media. You might not want them on your social media account, and you may be tempted to delete them. Be aware that such comments may be public records if your account is such that you use it to communicate with constituents and post city business or other agency-related items. Retention of documents, including comments on social media, is based on the record’s content and not the platform.
Each social media platform has its own ‘community standards’ regarding obscene or profane content and/or harassment, but enforcement is imperfect. You can establish a clear, viewpoint-neutral policy for deleting offensive comments. Post it on your social media accounts and err on the side of permitting commentators to engage.
Can I tweet during a meeting?
Some elected officials have taken to tweeting from the dais during their meetings. Your council or commission may have adopted meeting or ethics policies that restrict the use of cell phones and social media, such as Twitter, during public meetings. Although such restrictions have not been tested in the courts, this may impact First Amendment free speech rights of elected officials. Keep in mind that such communication may be a public record. Also, you will want to avoid tweeting from an Executive Session in order to protect the confidentiality of the session
Did we just have a meeting on social media?
The Open Public Meetings Act (OPMA) applies to social media/electronic platform interactions between elected officials just as it does to in-person or phone interactions. Make sure you don’t have a discussion of agency business publicly or privately on social media, email, phone, or in person with whatever number constitutes a quorum for your jurisdiction, or you may be in violation of the OPMA. Keep in mind that a meeting can occur electronically with a ‘rolling’ quorum.
Blogging: an alternative to social media
If you feel that you want to keep constituents informed but don’t want to handle some of the negative aspects of social media platforms, a blog may be a good choice for you. Most blogging platforms have the option to disable comments, so a blog is a good way to communicate with constituents and can simplify records maintenance for agency staff. Because other elected officials cannot respond back, there is less risk of a “discussion” occurring via the blog and, therefore, less risk of an OPMA violation. If you blog about public business, make sure your blog is public, not private, or you could run afoul of the First Amendment.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.