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.
Michigan References Freedom of Information Act in Social Media Community Guidelines
The state of Michigan’s Social Media Community Guidelines explain how social media content falls into the Freedom of Information Act (FOIA):
“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.”
View 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.“
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.