Wisconsin Public Records Law & Social Media
Social media records in Wisconsin are governed by Wisconsin Statutes 19.31-19.39 which state “Any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority.”
View Statute text
a. Handwritten, typed, or printed documents.
b. Maps and charts.
c. Photographs, films, and tape recordings.
d. Computer tapes and printouts, CDs and optical discs.
e. Electronic records and communications.
i. Information regarding government business kept or received by an elected official on her website, “Making Salem Better,” more likely than not constitutes a record.
ii. E-mail sent or received on an authority’s computer system is a record. This includes personal e-mail sent by officers or employees of the authority.
iii. E-mail conducting government business sent or received on the personal e-mail account of an authority’s officer or employee also constitutes a record.
Guidelines from the Attorney General on Social Media as Public Records
In 2019, the Attorney General released a Wisconsin Public Records Law Compliance Guide which directly addresses social media as public records. The guide clearly states that content posted on social media by or on behalf of a government authority must be produced if it is responsive to a public records request. In short, government social media is public record in Wisconsin.
View Public Records Guide
Excerpt from Wisconsin Public Records Law Compliance Guide, pages 59-60
- Electronically stored information generally constitutes a “record” within the meaning of the public records law so long as the recorded information is created or kept in connection with official business. The substance, not the format, controls whether it is a record or not.
- Emails and other records created or maintained on a personal computer or mobile device, or from a personal email account, constitute records if they relate to government business.
- Examples of electronic records within the Wis. Stat. § 19.32(2) definition can include word processing documents, database files, email correspondence, web-based information, PowerPoint presentations, and audio and video recordings, although access may be restricted pursuant to statutory or court-recognized exceptions.
- Electronic records include content posted by or on behalf of authorities to social media sites, such as Facebook and Twitter, to the extent that the content relates to government business. If an authority uses social media, the content must be produced if it is responsive to a public records request. This includes not only currently “live” content, but also past content.
- Wisconsin Stat. § 16.61, which governs retention, preservation, and disposition of state public records, includes “electronically formatted documents” in its definition of public records.
- If an authority makes use of social media, or if employees use mobile devices to conduct government business (whether the device is personal or provided by the authority), the authority should adopt procedures to retain and preserve all such records consistent with Wis. Stat. § 16.61 (state authorities), Wis. Stat. § 19.21 (local authorities), and applicable records disposition authorizations.
- Information regarding government business kept or received by an elected official on her personal website, “Making Salem Better,” more likely than not constituted a record.
Wisconsin Social Media Records Management in Practice
The City of Janesville offers a great example of a comprehensive social media policy that clearly outlines the impact of the Wisconsin Open Records Law on social media records.
View Janesville's Social Media Policy
CITY OF JANESVILLE SOCIAL MEDIA USE POLICY
7. City of Janesville social media sites are subject to State of Wisconsin public records laws. Any content maintained in a social media format that is related to City business, including a list of subscribers and posted communication, is a public record. Content related to City business shall be maintained in an accessible format and so that it can be produced in response to a request.
8. Wisconsin State law and relevant City of Janesville records retention schedules apply to social media formats and their content.
9. Social media sites shall clearly indicate that any content posted or submitted for posting are subject to public disclosure. Users and visitors will be notified that public records requests shall be directed to the City Manager’s Office.