The South Dakota Public Records Law mandates that agencies preserve public records, defined to include “all records and documents regardless of physical form.” Therefore, social media in South Dakota is governed by the South Dakota Public Records Law.
Excerpt from South Dakota Open Records Law
SL 2009, ch 10, § 2.
1-27-1.1. Public records defined.
Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form remains a public record when maintained in any other form. For the purposes of §§ 1-27-1 to 1-27-1.15, inclusive, a tax-supported district includes any business improvement district created pursuant to chapter 9-55.
This guidance from the Reporters Committee for Freedom of the Press specifically addresses social media records in their Open Government Guide for South Dakota. The guide recommends social media content be treated the same as e-mail under the South Dakota Public Records Law. The guidance indicates that e-mail can be a record because “physical form of a record is irrelevant” under the Law. Under the same interpretation, social media records in South Dakota can also be a public record.
III. STATE LAW ON ELECTRONIC RECORDS
D. How is e-mail treated?
Not specifically addressed.
1. Does e-mail constitute a record?
Physical form of a record is irrelevant under SDCL § 1-27-1.1. Theoretically, email can be a record. However, work-related “correspondence” and “personal correspondence” are protected under SDCL § 1-27-1.5 (12) and (19).
E. How are text messages and instant messages treated?
Same as for emails
F. How are social media postings and messages treated?
Presumably, the same as emails.
The Office of the South Dakota Secretary of State implemented a comprehensive social media policy that includes consideration for public records. The policy clearly states that social media records are subject to South Dakota public records laws and will be retained in compliance. This policy serves as an effective model for managing social media records in South Dakota.
Excerpt from South Dakota Secretary of State Social Media Policy
All social network sites and entries shall clearly indicate that any articles and any other content posted or submitted for posting are subject to any applicable public disclosure laws as well as the record retention requirements of the State of South Dakota.
Content submitted for posting by an employee that is deemed not suitable for posting by a social networking moderator because it is not topically related to the particular social networking site objective being commented upon, or is deemed prohibited content shall be retained pursuant to the records retention schedule along with a description of the reason the specific content is deemed not suitable for posting.
If you would like to speak with one of the cities, counties, or agencies in South Dakota that are currently using ArchiveSocial to meet South Dakota Public Records Law requirements, or would like to learn more about how your social media can comply with the law, just use the button below to get in touch. [include_popup pardotform=”172″]