What is archiving and how does it relate to public agencies?

Many public agencies are familiar with this issue as thousands around the country are already archiving their social media, but in the grand scheme of government communications, social media can still feel like new territory. Similar to the way most agencies have been archiving their email for years, the same requirements apply to agency affiliated social media accounts, whether they be through Facebook, Twitter, Instagram, etc. Social media archiving, simply put, is a process by which agencies automatically retain the communications happening on their official social media accounts (posts, comments, messages, tweets, etc.) in a protected database that is adequately searchable.

As social media continues to become an evermore important platform for agencies to engage with their constituents, the need for social media archiving is sometimes met with confusion:


 

These examples are the most common misconceptions about the social media compliance conundrum many agencies often encounter when first broaching this issue.

There are three primary reasons agencies archive their social media: To be in compliance with public records requirements, to be prepared for public records requests, and for risk mitigation. We can further break these three needs down to take a more nuanced approach in answering the ultimate question many public agencies have today: “Why do we need to archive our social media?”

Why Archive Social Media?

  1. Social Media is a Public Record

In all 50 states social media is considered a public record. Each state has their own public records law, but in essence they all serve the same purpose. Public records laws are meant to be broad, future proof, and ensure citizens have expansive and unrestricted access to government records. It’s not the format of a communication that dictates its applicability to the records law, it’s the content that matters. Some commonalities in language within state records laws are “regardless of physical form” and “in any format”. That means if the communication on your Facebook page or Twitter account is in any way related to ‘agency business’ it is a public record. ‘Agency business’ doesn’t only relate to overly significant or controversial topics, but could simply be an event advertisement, safety notice, or project update.

It’s not explicitly declared in any state’s public records laws that you must archive your social media. However, public records laws do require that public agencies preserve their 7.9 Webinar - 1st Amendment & Social Media Mappublic records. Just relying on Facebook or Twitter to maintain your records is not an adequate form of retention, in the same way that relying on Yahoo or AOL to maintain your email records would not be adequate. Your email is most likely backed up in some form or fashion, so why not your social media? In short, you need to take proactive methods to retain and preserve your social media records in order to be in compliance with public records laws.

  1. Comments Are Critical

Open records laws dictate that you not only maintain content your agency creates, but also communications received from the public. The language commonly used in records laws is the phrase “made or received” which would indicate that, depending on the content, communications received from the public would also fall under your public record requirements.

If public agencies were only responsible for the communications they created on social media, that would still create a retention requirement, but one that would be much easier to handle. Any communication that you receive from the public that is related to ‘agency business’ is a record and subject to records laws, and therefore your retention requirements. Information can be received on social media in a variety of ways (private messages, reviews, comments, etc.) but Facebook comments are probably the most difficult to keep track of. Social media provides a 24/7 platform for your citizens to engage with you and create records, making it nearly impossible to keep track of every incoming record.

7.9 Webinar - 1st Amendment & Social MediaIn addition to the records laws mandating the retention of received communications, many states have some form of guidance adding increased clarity. For example, in Texas the Department of Information Resources published a social media resource guide stating that “…content posted by the public on an agency’s social media page are records…”, and in Indiana the Public Access Counselor released an advisory opinion stating that “…all comments must be retained…”

  1. Relying on Social Networks is Flawed

It’s established that social media is a public record, including comments and other incoming communications, and that creates a retention requirement. Agencies may still be wondering why they can’t rely on the social networks to maintain their records. There are a few key reasons why agencies can’t and shouldn’t rely on these companies to maintain their data.

  • First, by relying on the networks, agencies are not maintaining their own records or meeting their retention requirements.
  • Second, the social networks are not bound to any state’s records laws and have no obligation to provide agencies with anything. They do offer assistance to law enforcement agencies for legal investigations, but even then they literally tell you that you can’t rely on them. For instance, here are Facebook’s Terms of Service for Law Enforcement. While they will attempt to help during certain legal circumstances, they require that agencies issue a preservation request before any content gets deleted, which in many cases defeats the purpose. The Borough of Chambersburg, PA received a records request for deleted content in 2018, which led to a lawsuit and settlement of $9K. The Borough subpoenaed Facebook for the deleted records and never received the data that they requested, showcasing once again that the responsibility and liability lies with public agencies, not the networks.
  • It’s also important to know that if agencies are currently relying on the networks to keep their information, they are losing records on a regular basis due to citizens’ ability to go back and delete comments, reviews, etc. In 2019, ArchiveSocial conducted a study of 500 public agencies that showed on average 1 in 15 records get deleted from government pages. These deletions often happen completely outside of public agencies’ control, and the reason that agencies can be held liable for deleted
    content is because those comments, messages, posts, etc. all required retention from the time they were created or received. In another lawsuit showcasing this accountability, the San Mateo Police Department, CA was sued for not maintaining their social media records appropriately when they were unable to produce the private messages requested by a citizen. The Police Department’s Twitter account was hacked and their messages were deleted, but they were still found liable because they did not preserve their own records.
  1. “Screenshots” Are Not Compliant

Now it’s time to think about a solution to this problem. You can attempt to meet your compliance requirements in a variety of ways; you can print your records from the networks periodically, download your data from the networks, or what we most commonly hear from agencies first trying to address this issue – take screenshots. Different forms of retention come with varying levels of compliance, and while screenshotting is definitely a form of record-keeping, it’s not a very compliant form. If you are relying on screenshots for your record-keeping, you will have gaps in your compliance and create organizational inefficiencies.


 

Screenshots or other manual forms of capture only take a snapshot in time, and social media is dynamic and continuously changing. If agencies do want to attempt this, how often will they screenshot? What if a comment is created and deleted before they notice? What about a comment that has been edited multiple times? What about the multimedia? How will they retrieve the technical metadata? Even if agencies try to check the networks hourly for new content, they will inevitably miss records and that creates a gap in compliance. Many authorities on technology have discussed why screenshotting is no longer viable, and this article from Digital Services Georgia goes into simplistic detail regarding the gaps in compliance associated with manual methods of archiving.

As far as workflow goes, manual methods of capturing are not ideal. Who will be assigned to do this continuous screenshotting? How much will that ultimately cost in time? How will the records be stored? How will they be made searchable? While an archiving solution addresses all of these problems automatically and in a more compliant fashion, it is often also more cost-effective when the various expenses tied into manual methods are considered. This cost-benefit analysis was a consideration when the Vernon Independent School District, TX decided to implement ArchiveSocial. As stated by Superintendent Byrd – “It’s a cost-saving matter that keeps the district prepared.”

  1. Producing Records in the Event of a Request

The same laws that require agencies retain these records also require that they produce them if the public puts in a request. Even if an agency is not archiving their social media with the appropriate technology, it is not 100% impossible for them to respond to a records request with the required data.

For example, if a citizen issued a request asking for the last three posts about road closures, that would be reasonably attainable for a social media manager to track down and manually format into an acceptable report. However, what is the likelihood that someone would ask for something that simple? There are mainly two reasons that agencies receive requests for their social media:

  1. Because it is detail heavy and/or covers a large timeframe
  2. Because it is for something no longer available on the networks

For years, The City of South Daytona, FL has leveraged ArchiveSocial to successfully capture and retain their records. A few years ago, before their social media had even gained heavy traction, they were involved in a viral situation in which they received over 24K records to their Facebook pages in one day. They also received a records request from a national media outlet asking for all of this content, which they were easily able to respond to using ArchiveSocial. We could also look at the Town of Erie, CO for another overwhelming example of a social media records request. When they received a request that asked for 14 different keywords over the span of 7 months for their entire social media presence, they too were easily able to respond and fulfill this request with ArchiveSocial. To sum up, agencies are receiving requests that would be near impossible to respond to without an archiving solution, and when agencies can’t respond to requests accurately it can lead to costly legal penalties.

  1. Other Needs for Documentation

Outside of your compliance obligations and dealing with records requests, social media is still an inherently risky platform. Even when agencies try to keep the content non-controversial (doesn’t everyone?), there will always be risk when using social media. Most often, that risk is not directly related to agencies’ practices, but it is what is outside of their control.

There are a variety of circumstances where having documentation could be critical for an agency outside of compliance circumstances:

  1. What if a law enforcement agency needs to use a social media record in a legal setting – will a screenshot hold up? Probably not.
  2. What if an agency is accused of censorship or a First Amendment violation and doesn’t have appropriate documentation? That will probably end in a costly settlement.
  3. What if an agency is being trolled or harassed and needs documentation, keeping in mind this type of content is often deleted by the citizen in question. Check out our webinar with the City of Sidney, OH where they explain how they used ArchiveSocial to pull records to show a history of threatening comments left by one of their citizens.

Even if you never receive a public records request for social media records, there are a variety of other situations where proper and accurate documentation will be useful or necessary. Having records to back up your policy, address accusations, identify misinformation, identify crime tips and threats, and for centralization and oversight are all important areas of needs that can be just as significant as the compliance obligation.

Putting It All Together

If a public agency chooses to operate on social media, these requirements need to be front and center. It’s not only the communication practices and policy that need to be solid, it’s the backend record-keeping that ties it all together and ultimately protects agencies from grievous circumstances.

Archiving your social media is not just a best practice, it is a requirement. In order to be in compliance, agencies must take proactive measures to ensure their records are being kept. Not only that, but agencies need to make certain their archiving approach will bring them into complete compliance when challenged with a request or other risk-oriented dispute.

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ArchiveSocial is the #1 provider of social media archiving in the public sector, working with nearly 3,000 public agencies ranging from some of the most well known entities like New York City, the US Department of Justice, and Dallas Independent School District, to small agencies like the Town of Duck, NC (population 400) and the City of Seldovia, AK (population 275).