In Vermont, public records are governed by the Vermont Public Records Law. The Law includes “any written or recorded information, regardless of physical form or characteristics” that is “produced or acquired” by a public agency. Therefore, social media records in Vermont qualify as a public record under the Law.
Excerpt from Vermont Public Records Law
§ 317. Definitions; public agency; public records and documents
b) As used in this subchapter, “public record” or “public document” means any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business. Individual salaries and benefits of and salary schedules relating to elected or appointed officials and employees of public agencies shall not be exempt from public inspection and copying.
The Vermont State Attorney General provides guidance on how to determine what qualifies as a public record under the Vermont Public Records Law. When there are close calls on whether a record should be considered public or closed, the Attorney General advises that agencies “err on the side of openness.” Under this guidance and with the broad definition of “public record”, social media records in Vermont can be considered a public record.
2. Applicability of the Law
“Public record” or “public document” means all papers, documents, machine readable materials or any other written or recorded matters, regardless of their physical form or characteristics, that are produced or acquired in the course of agency business. Title 1, Chapter 5, Subchapter 3 is the first place to look in determining which records are public. Ideally, a bright line should separate these two, but there are occasional close calls.
Our advice when there are close calls is to err on the side of openness. Indeed, the courts seem to follow this rule when asked to resolve disputes about whether or not certain records are public. See Finburg v. Murnane, 159 Vt. 431
The Town of Milton has a comprehensive social media policy in place that provides guidance for the agency’s use of social media. Along with content and comment management, the guide clearly defines social media records in Vermont as a public record. This policy complies with public access and retention requirements of the Vermont Public Records law, mitigating possible risks of records related litigation.
Excerpt from the Town of Milton Social Media Policy.
Section 10: Public Records Law – Compliance
Town of Milton social media sites and their related social media content are subject to Vermont’s Access to Public Records Law. Information that is produced or acquired in the course of town business, including comments posted to town social media sites, may be a public record – thus, there should be no expectation of privacy in regards to the information posted on these social media outlets.
All files, documents, data, and other electronic messages created, received, or stored on the town’s computer system are open to review and regulation by the town and may be subject to the provisions of Vermont’s Public Records Law. A public record consists of any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of town business. Public records, regardless of format, are available for inspection and copying unless there is a specific statute exempting the record from public disclosure. Those records exempt from public inspection and copying are set out at 1 V.S.A. § 317(c).
The town’s official website and town social media sites shall clearly indicate that any articles and any other content or comments posted or submitted for posting in whatever format are subject to public disclosure. Content related to town business shall be maintained in an accessible format so that it can be produced in response to a public records request. Users shall be notified that public disclosure requests must be directed to the proper custodian of public records.
Section 11: Public Records Law – Retention
Relevant town records retention schedules apply to content on the town’s official website as well as to town social media sites. Content posted or submitted for posting shall be retained pursuant to Vermont’s Public Records Law in its standard format and in accordance with applicable disposition orders and retention schedules as established by the Vermont State Archivist.
If you would like to speak with one of the cities, counties, or agencies in Vermont that are currently using ArchiveSocial to meet Vermont 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″]