Arkansas Freedom of Information Act & Social Media
The Arkansas Freedom of Information Act (FOIA) requires public agencies to preserve and maintain public records. Under Arkansas FOIA, public records include “writings, recorded sounds, films, tapes, or data compilations in any form,” which would include electronic content like social media. Therefore, social media records in Arkansas can be considered public records.
Arkansas Public Records Law Text
As used in this chapter, unless the context otherwise requires:
(1) “Public records” means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
State Attorney General Guidance on Arkansas Freedom of Information Act
The Arkansas Freedom of Information Handbook was developed by the State Attorney General and co-sponsors to “communicate the importance of open government” to citizens. Regarding what constitutes a public record, the document clarifies the broad definition to include “both records created by an agency and those received from third parties” that are within the scope of public office activities, where the physical form is “unimportant.” Under this interpretation, social media records in Arkansas do qualify as public information.
Arkansas Attorney General Guidance
Excerpt from the Arkansas Freedom of Information Handbook
Q. What records are subject to the act?
A. Any record “required by law to be kept or otherwise kept and that constitutes a record of the performance or lack of performance of official functions” is a public record. Further, “all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records.” The FOIA covers both records created by an agency and those received from third parties. The physical form of the record is unimportant, as the FOIA applies to “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium.”
Arkansas Social Media Records Management in Practice
The City of Bentonville, Arkansas has a clear policy recognizing social media content as a public record posted on the City Facebook page. The policy allows that all comments and posts are public records “subject to the Arkansas Freedom of Information Act.” This policy provides a strong example of how to manage social media records in Arkansas for public records law compliance.
City of Bentonville Social Media Policy
7. The content communicated via social media tools is subject to the Arkansas Freedom of Information Act.
9. Content posted or communicated using City of Bentonville social media tools, either by city staff or the public, will be monitored. Public comments should not be deleted from Social Media Accounts, but some platforms allow an administrator to hide comments. Content containing any of the following may be immediately regulated in a manner consistent with constitutional free speech rights of the comment writer:
- Violates the Social Media Platform’s terms of service;
- Contains information about that is legally deemed confidential and should not be made public;
- Considered pornographic, obscene, or defamatory in nature, including links to inappropriate sexual content;
- Openly advocates for violence or the threat of violence;
- Openly discriminates against others or advocates for discrimination based on race, creed, color, age, religion, gender, genetic information, sex, pregnancy status, sexual orientation, national origin, ethnicity, disability, veteran status, or any other legally protected class;
- Solicitations of commerce or marketing of private business enterprises;
- Encourage or promote illegal activity;
- Include information that may compromise the safety or security of the public or public systems;
- Appear to violate the intellectual property or copyright of any other party;
- Content that is clearly off-topic or repetitive and detracts from the original City Social Media Content.