Michigan Public Records Law - The Freedom of Information Act
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.
Government agencies that fail to comply with the Michigan FOIA public records laws can be subject to civil penalties and fines.
View Michigan 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.
Michigan Municipal League Business Alliance Guidance
An article published by a Michigan Municipal League Business Alliance partner, written by attorney Steven Mann and titled ‘The Legalities of Social Media‘, discusses how social media falls under the same retention requirements as other types of records. It also illuminates how improper preservation, or lack of preservation, of these records can be considered criminal.
View Guidance from this Municipal Law Expert
Excerpts from The Legalities of Social Media:
“…social media, like any other public record, must be retained by the public body pursuant to record retention laws. Public records of local government entities actually belong to the State and may only be disposed of in accordance with a duly adopted record retention schedule. Failure to properly preserve public records can constitute a misdemeanor criminal act.”
“Proper retention requires that the communications be preserved, either electronically or in paper format. Preserving Facebook, Instagram, Twitter, and LinkedIn communications generally requires archiving tools and a staff to store printed or digital copies, or engaging a company to provide social media archiving services.”
State of Michigan - Social Media Community Guidelines
The state of Michigan’s Social Media Community Guidelines explain how social media content falls into the Michigan Freedom of Information Act (FOIA):
View Michigan Social Media Community Guidelines
Excerpts from Michigan’s Social Media Community Guidelines:
“All content posted on official state of Michigan social media pages is public record. Content removed from official state of Michigan social media sites that is archived becomes public record as well. With limited exceptions, such content is therefore not exempt from FOIA requests. FOIA requests should be submitted through official state of Michigan request processes.”
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. The Washtenaw County, MI Sheriff’s Office has created a comprehensive Procedural Guideline – Use of Social Media document, which specifically addresses policies and retention of social media records in Michigan.
View Washtenaw County Policy
Excerpt from the Washtenaw County Sheriff’s Office Procedural Guideline – Use of Social Media regarding social media sites and record retention:
e) Social media content shall adhere to applicable laws, regulations, and policies, including all information technology and records management policies
(1) Content is subject to public records laws. Relevant records retention schedules apply to social media content.
(2) Social media conducted on behalf of the County is subject to the State of Michigan Record Retention Laws and Policies for Local Government and the Michigan Freedom of Information Act. Any content maintained in a social media format related to County business, including communications posted by the County and communications received from the public, is a public record. The County will assist departments, where needed, with the retention of all related content and complying with all retention schedules. As of 2019, the County is using the service “Archive Social”