New Jersey Public Records Law & Social Media
Social media records in New Jersey are subject to the Open Public Records Act (OPRA), which defines records as, “… any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received in the course of his or its official business …”
By this definition, both information posted to social media by public agencies and the comments received on that information constitute records under OPRA.
Act Overview Text
Excerpt from NJ OPRA
Defines Government Record
“Government record” or “record” means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including sub-ordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
Guidance from the New Jersey Records Management Service
The Records Management Service, a division of the Department of the Treasury, is the statutory agency responsible for records management in New Jersey. In a February 2013 presentation, a records management service representative addressed social media as it pertains to the New Jersey OPRA requirements. Their guidance states that social media records in New Jersey are subject to OPRA and other public records management laws. The guidance also recommends that agencies develop a social media policy to gain control of content and records.
Records Management Services Guidance
Excerpt from Records and Information Management, from the New Jersey Records Management Service.
Social Media: interactive communication via web-based and mobile technology.
- The Plus Side: it is global, immediate, and accessible.
- The Negative Side: it is not private. Directives should be established regarding content – language, subject matter, etc. Also, it can be altered which presents a real concern for an agency to release public information via Social Media which can be altered. Because of this, Social Media is subject to the same Records Retention, Disposition, Access; Intellectual Property; OPRA, and Legal Rules of Evidence and E–discovery concerns like e-mail, instant messaging, blogs, wikis, podcasts, metadata, or website content.
- An agency should develop a Social Media Policy with centralized oversight within the agency. Social Media is similar to digitally-borne or website records. On your own website, you have control and can print hardcopy and protect it. With Social Media, you cannot control it and it can be altered or removed .
- A Disclaimer should accompany the data being placed on a Social Media site and hardcopy should be printed as an audit trail in the event of an OPRA Request, E-discovery, litigation, etc.
New Jersey Social Media Records Policy in Practice
Many municipalities are still uncertain as to how OPRA applies to social media records in New Jersey, but are nevertheless taking steps to maintain records. This is of particular importance when it comes to keeping records of comments removed from social media sites due to violations of an agency’s posting policy. One example of such policy and the records retention implications comes from Metuchen, NJ, which states, “[a]ny content removed based on these guidelines will be retained by the Borough Administrator and/or her/her designee pursuant to the applicable Borough retention policy.”
Social Media Policy – Borough of Metuchen
Excerpt from the Social Media Policy – Borough of Metuchen
6. The Borough Administrator and/or his/her designee shall monitor Borough social media sites to ensure adherence to both this Social Media Policy and the interest and goals of the Borough. Metuchen has the right and will restrict or remove any content that is deemed in violation of this Social Media Policy or any applicable law. Any content removed based on these guidelines will be retained by the Borough Administrator and/or her/her designee pursuant to the applicable Borough retention policy, including the time, date and identity of the poster, when available.