Social media records in Indiana are governed by the Access to Public Records Act (“APRA”) which requires the retention of and grants public access to any writing created or maintained by a public entity regardless of form or characteristics. Public agents or agencies found in violation of this act may be subject to civic penalties of up to $500 per violation.
(o) “Public record” means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.
(g) A court may impose a civil penalty for a violation under subsection (c) against one (1) or more of the following:
(h) In an action under this section, a court may impose the following civil penalties:
The Indiana Public Access Counselor (PAC) issued an advisory opinion in September 2013 that the Town of Morristown had violated APRA by deleting comments made on the town’s Facebook wall without retaining a record. The opinion was issued in response to a formal complaint made by a citizen who alleged that the town had removed her comments unfairly and then denied her access to the records. The PAC concluded that, “all comments to an agency web site must be retained.“
Excerpt from PAC Advisory Opinion Re: Formal Complaint 13-FC-250; Alleged Violation of the Access to Public Records Act and Open Door Law by the Town of Morristown
“Social media has not been addressed ad nauseum in prior opinions. The ever-changing landscape of electronic communication presents unique challenges for determining the accessibility of public information. Although I do not suggest the Town intentionally violated the APRA, it is important to note public agencies should not use social media as a way of avoiding the obligations of the law. Based upon Ind. Code § 5-14-32(o):
“Public record” means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.
It is my opinion that Facebook data clearly falls within this definition. If a public agency creates a website or social media account and maintains its content, then any records request relevant to that site would need to be fulfilled. This would be the case even if the agency needs to petition the site’s server to gain access to the information. It is no different than any other third-party contractor or vendor an agency would employ to maintain certain information. It is recognized it may take some time to retrieve, but it must be released pursuant to a request. The Town is obligated to satisfy the information request and work with the third-party vendor to do so.
As to the allegation the site has deleted your comment(s), it is my opinion an agency can moderate comments to a social media site as they see fit. For example, if an inflammatory or inappropriate comment is posted to a site, then an agency, as administrator of the site, has discretion to remove it. I am aware of nothing in case law or statute that would restrict the discretionary rights of a public agency to moderate public forums. The caveat to this is the agency must retain a copy of the comment or discussion and also make them available for inspection. This can be in electronic format as a file of a screen shot or a comment print-out or however the information presents itself. The important consideration to remember is that all comments to an agency web site must be retained.”
Despite the clear stance of the Public Access Counselor on the status of social media records in Indiana, few major municipalities in Indiana have implemented comprehensive social media policies. The City of Evansville includes records retention in their internal facing social media policy, but does not have a public facing policy available.
Excerpt from the City of Evansville Social Media Policy
(2) City and department policies, rules, regulations and stadards of conduct apply to all employees engaged in social media networking activities while conducting City business. Use of your City email address and communicating in your official capacity will constitute conducting City business. All departments that use social media are responsible for complying with applicable federal, state, and City policies. This includes adherence to established laws and policies regarding copyright, records retention, Freedom of Information Act (FOIA), privacy laws (HIPPA), and information security policies that may be established by the City IT department.
If you would like to speak with one of the cities, counties, or agencies that are currently using ArchiveSocial to comply with Public Records Laws, please contact the Sales Team and we’ll put you in touch.