New Ruling Finds Facebook Posts Can Be a Public Record
A recent ruling in the Washington State Court of Appeals (Division Two) has clarified the circumstances under which personal Facebook posts can be considered public records.
This decision, which was highly anticipated by those in the public records community, hinges on whether a councilmember’s city-related posts on her personal Facebook account were prepared within the scope of her employment.
Following the same line of thinking as Nissen v. Pierce County and West v. Vermillion, the West v. City of Puyallup court held that “a public official’s posts on a personal Facebook page can constitute an agency’s public records subject to disclosure under the PRA if the posts relate to the conduct of government and are prepared within a public official’s scope of employment or official capacity.”
However, the court also held that the Puyallup City Councilmember Julie Door’s personal Facebook posts related to city business were not public records. Specifically, when the city councilmember took it upon herself to post general, publicly available information about the city, including items like city council meeting agendas, she was not acting in her “official capacity” and therefore her posts were not public records.
Like many recent PRA cases, the ruling turns on the specific facts of this case.
The facts in West v. Puyallup are not complicated and my sense is that these facts could apply to many local government employees and officials out there who have their own Facebook page and occasionally post about local government business.
The case focused on Puyallup City Councilmember Julie Door’s posts on her personal Facebook page, ‘Friends of Julie Door,’ which the councilmember used for campaign purposes.
The posts at issue fell under three categories: (1) references to various city issues, including new sidewalk construction, widening of a city road, the city’s budget, and a city council meeting agenda; (2) references and links to posts on the city’s Facebook page about various city issues; and (3) references and links to the Puyallup Police Department’s Facebook page. Private individuals commented on a handful of the posts.
The court’s analysis focused on whether the Facebook posts met the three elements of a public record in RCW 42.56.010(3):
- “any writing”
- “containing information relating to the conduct of government or the performance of any governmental or proprietary function”
- “prepared, owned, used, or retained by any state or local agency”
After quickly concluding that the posts were “writings” and (assuming without deciding) that at least some of the posts were related to the conduct of government or a government function, the court turned to whether the City of Puyallup “prepared” Councilmember Door’s Facebook posts.
Quoting extensively from Nissen, the West court reminded us that:
- A record an agency employee prepares in the “scope of employment” is a record prepared by the agency because agencies act through their employees and other agents.
- The Nissen court equated” official capacity” with “scope of employment” when referring to an elected official, and records an employee prepared in his or her official capacity can be public records.
- “Scope of employment” means the job requires it, the employer directs it, or it furthers the employer’s interests (i.e., an elected official who acts in an official capacity or conducts public business furthers the agency’s interest).
Applying the test to Councilmember Door’s Facebook posts, the court concluded that the posts were not prepared by the city for the following reasons.
- Her job as a city councilmember did not require that she post to Facebook.
- There is no evidence that the city directed Councilmember Door to prepare the posts.
- Councilmember Door’s Facebook page was not associated with the city and was not characterized as an official city Facebook page.
- Councilmember Door’s posts did not amount to conducting city business — the posts provided general city information and did not provide specific details of her work as a councilmember or regarding council discussions, decisions, or other actions.
- Councilmember Door’s post may have furthered the city’s interest to a “minimal extent” by providing the public with city information, but this “tangential benefit” was not sufficient to establish that Councilmember Door acted within the scope of employment or her official capacity.
This is an important case for elected officials and employees who maintain their own personal Facebook page and occasionally post about agency business. If those posts are clearly not within the scope of employment test as set forth in Nissen and further defined in the West case, then those posts are not public records.
If, however, one of the scope of employment elements is met, then those posts are transformed into public records and must be provided upon request. An agency looking at this issue, therefore, must conduct an independent analysis of the employee’s or official’s job duties, existing authority, and reasons for making the posts at issue. For example, was the post made at the direction of the employee’s supervisor, or did the post serve some specified purpose regarding an ongoing agency project, clearly furthering the agency’s interests?
In this case, the court provided some good direction on what types of social media posts constitute a public record. When your agency receives a request for personal Facebook posts, do a careful review of West v. City of Puyallup before responding.
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