California Public Records Act & Social Media
California has over 431 active social media accounts run by public agencies with 38 million followers. The California Public Records Act requires that government agencies preserve public records regardless of physical form, and specifies “any form of communication or representation”. Therefore social media records in California qualify as public information under the law.
California Law Text
(e) “Public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
(g) “Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
Guidance from the California Secretary of State Records and Information Management Program
The California Records and Information Management Program (CalRIM), a department of the Secretary of State, has issued guidelines that explain when social media records in California should be retained. The document supports the use of social media by agencies to engage with the public, and outlines criteria for determining when its use creates records that must be retained.
Social Media Records Guidance from CalRIM
Excerpted from “CalRIM Electronic Records Guidebook”
One of the challenges presented by social media is the identification of a record. An entry on a social media site might not always constitute a record. The following should be considered when trying to determine if an entry on a social media site is a record:
- Does the social media content contain information or evidence concerning an agency’s mission or policies?
- Is the information unique or available elsewhere?
- Does the social media content contain evidence of official agency business?
- Does it document a controversial issue?
- Does it document a program or project that involves prominent people, places or an event?
If the answer to one or more of the above questions is yes, then the social media entry is a record.
Proposition 42 and Government Social Media
The passage of Proposition 42 in June of 2014 amended the state constitution to require that local governments abide by the California Public Records Act. The new law also ends reimbursement from the state government of costs incurred by local governments in fulfilling records requests.
California Social Media Records Management in Practice
Palo Alto, LA County, Montague, Fullerton, and Concord are just a few of the more than 100 cities, counties, and public agencies that have adopted comprehensive social media policies that clearly state, “social media sites are subject to the California Public Records Act.” The social media policy of South San Francisco provides a clear example.
South San Francisco's Social Media Policy
City of South San Francisco Social Media Policy
9) City Social Media sites are subject to the California Public Records Act. Any content maintained in Social Media format that is related to City business, including a list of subscribers, posted communication, and communication submitted for posting, may be a public record subject to public disclosure. For Public Records Act requests, please contact the City Clerk’s office directly.
Assembly Bill 1475
In 2021, Assembly Bill 1475 was passed and approved by the Governor. This bill prohibits the posting of booking photos, often called “mugshots”, for individuals arrested on suspicion of nonviolent crimes. Affecting police departments and other law enforcement agencies, this bill also requires that police departments remove these photos from social media pages in most cases if they are already present.
This causes issues for social media record retention for the California Public Records Act. Removing images and posts from social media may also mean deleting public records if you aren’t preserving records outside of the social media site.
Assembly Bill 1475 Law Text
Excerpt from Assembly Bill No. 1475
“The bill would require a police department or sheriff’s office that shares, on social media, a booking photo of an individual arrested for the suspected commission of a nonviolent crime to remove the information from its social media page, upon request, unless the same specified circumstances exist. The bill would require a police department or sheriff’s office to remove the booking photo of a person who has committed any other crime from social media if the individual’s record has been sealed, the individual’s conviction has been dismissed, expunged, pardoned, or eradicated pursuant to law, the individual has been issued a certificate of rehabilitation, the individual is found not guilty of committing the crime for which they were arrested, or the individual was ultimately not charged with the crime or the charges were dismissed.”