Michigan Public Records Law
Social media records in Michigan are governed by the Michigan Freedom of Information Act (“FOIA”), which regulates and sets requirements for the disclosure of public records by all public bodies in the state.
According to a 2007 FOIA Pamphlet prepared by the Attorney General, it does not matter what form the record is in. The act applies to any handwriting, typewriting, printing, photostating, photographing, photocopying and every other means of recording.
Government agencies that fail to comply with the Michigan FOIA can be subject to civil penalties and fines.
View FOIA Text
(e) “Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.
(h) “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.
Sec. 10b. If the court determines, in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence. In determining the amount of the civil fine, the court shall consider the budget of the public body and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall be deposited in the general fund of the state treasury.
LEAF Newsletter Addresses Social Media as Public Record
The July 2010 Law Enforcement Action Forum Newsletter addresses the topic of current technology (including social media) and how it fits in with Michigan’s FOIA laws. In the newsletter the opinions of two attorneys were featured.
Attorney Audrey Forbush, LEAF Legal Advisor,concludes that location and format of public records is unimportant, based on the most recently updated provisions of Michigan’s FOIA.
The newsletter also highlights a presentation given by Attorney Laura Katers Reilly at the MML Region Seven Education Seminar in Ishpeming, Michigan, on May 13th, 2010, in which she discusses the importance of retaining social media records in Michigan.
View LEAF Publication
Excerpts from LEAF Newsletter:
“Audrey [Forbush] said, since the Legislature was very specific in outlining the current technology available when they last amended FOIA, it is reasonable for public officials to conclude that location or format of the record is not relevant as long as it meets the definition of a public document.”
Reilly explains,”One of the most important issues in using a social networking site is for the municipal entity to establish rules of use before creating a social networking page. The rules should be placed on the social networking page setting forth the purpose of the forum and guidelines for posting comments.”
“Remember, under Howell and Detroit Free Press, private records can become public records when it becomes relevant to an official function. It becomes very important to be able to find, analyze and reproduce the information if presented with a FOIA request or subpoena, otherwise there may be sanctions.
Michigan Social Media Records Policy in Practice
As social media becomes more widely utilized as a method of two-way communication between government agencies and the public, some local government agencies are taking steps to ensure successful use, including creating agency-specific social media policies. Oakland County, Michigan has created a comprehensive Social Media Operating Procedures Handbook, which specifically addresses retention of social media records in Michigan.
View Oakland County Policy
Excerpt from the Oakland County, Michigan Social Media Operating Procedures Handbook regarding social media sites and posting:
1. Are the posts public records?
If the posts are made or received in connection with the transaction of the department’s public business (such as providing advice or receiving comments about the department, its programs, core business, etc.), then they are public records for the purposes of records retention and need to be retained for their minimum retention periods.
2. Are the posts primary or secondary copies?
If the posts are simply copies of records that the department is already retaining for the minimum retention period (such as links to publications), then the posts may be considered secondary copies and retained accordingly. Otherwise, the posts are the department’s primary record.
3. How long do the posts need to be retained?
Departments should use the same records retention standards for posts that they would use if the same advice was distributed as a letter or an e-mail to everyone within the department’s jurisdiction. Departments need to retain their primary record of posts, which are public records for at least the minimum retention period listed for those records in the approved records retention schedules.