New York Public Records Law
Social media records in New York are governed by the New York Freedom of Information Law (“FOIL”) which requires the government to be “responsive and responsible to the public.” The law defines a record as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.”
Freedom of Information Law Text
Excerpts from FOIL
“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.”
“3. ‘Agency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”
“4. ‘Record’ means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
Guidance from the New York State Archives on Managing Social Media Records
In Collaboration with the University of the State of New York and the State Education Department
The New York State Archives released guidance on how to manage social media records in New York. The guidance states that for government entities, “identifying and applying the appropriate retention periods to social media records is a critical step in managing them.” The report includes information regarding agencies’ retention requirements as well as additional resources that highlight best practices.
New York State Archives Guidance
Excerpts from New York State Archives ‘Understanding the Importance of Managing Social Media Records‘ Guidance.
Identifying and applying the appropriate retention periods to social media records is a critical step in managing them.
Meeting Retention Requirements for Social Media Records
Governments also need to ensure that they are capturing the information that they actually need to manage. For example, Twitter has a built-in tool to download user accounts, but only the user account information and tweets are captured. The interaction with other users is lost… Another option may be to utilize a cloud-based social media archiving tool that will capture your social media records and store them on their own servers.
Governments also need to examine how frequently governments will need to extract or capture their social media records. There are a number of variables to consider including:
- How frequently the content being posted and added to changes
- The quantity of the content being posted
- The stability of the networking site
- The strategy being employed to manage the records; and
- The functionality of the tools available for extracting the information from the site
New York State Bar Association (NYSBA) Offers Social Media Ethics Guidelines for Attorneys
The NYSBA has offered guidance on social media in response to attorneys’ need to be attuned to the particular ethical responsibilities posed by social media. Regarding social media records in New York state they advise, “if an attorney utilizes social media to communicate with a client relating to legal representation, the attorney should retain records of those communications, just as she would if the communications were memorialized on paper.”
Excerpts from NYSBA Social Media Ethics Guidelines
Guideline No. 3.C: Retention of Social Media Communications with Clients
“If an attorney utilizes social media to communicate with a client relating to legal representation, the attorney should retain records of those communications, just as she would if the communications were memorialized on paper.”
“The lawyer must take affirmative steps to preserve those emails and social media communications, such as chats and instant messages, which the lawyer believes need to be saved. However, due to the ephemeral nature of social media communications, “saving” such communications in electronic form may pose technical issues, especially where, under certain circumstances, the entire social media communication may not be saved, may be deleted automatically or after a period of time, or may be deleted by the counterparty to the communication without the knowledge of the lawyer. Casual communications may be deleted without impacting ethical rules.”
New York Social Media Records Policy in Practice
New York State has created a social media policy to assist social media communication between New York State government and the public. It identifies social media posts and communications as public record in New York, and discloses that those records may be treated as public information. A policy like can help New York agencies operate in compliance with the New York Freedom of Information Law.
New York State Policy
Excerpts from the New York State Social Media Use Policy
“New York State engages New Yorkers through many digital outlets, including NY.gov and Governor.NY.gov. Communicating with the State through social media enables you to contact us in a direct and meaningful way…”
“You agree that any information you post on a New York State social media site is irrevocably, permanently licensed to New York State and may be treated by the State as public information subject to disclosure to third parties. If a copyright is indicated on a video, photo, graphic or other material, permission to copy the material must be obtained from the original source of the material before posting.”