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on April 20, 2015 at 6:30 AM, updated April 20, 2015 at 6:31 AM
Social media pages like Facebook can be a valuable tool for municipalities or police departments in reaching its citizens, however, public entities should keep an eye on proper record keeping, experts said.
Public records, whether digital or not, must be retained for specific time periods so that the information can be requested through the Open Public Records Act.
“If a record is created by a government agency or a government agent or a government official in a scope of his or her duties, it’s government record,” said John Paff, chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project. “It has to be disclosed.”
A recent example of a local government agency getting in trouble over its social media habits was when Vineland Police Department was caught blocking and removing comments on its Facebook page regarding the March 31 in-custody death of Phillip White.
After the situation was brought to the city’s attention, Vineland unblock the comments.
“A Facebook page, if run by a government entity, it’s considered public government record,” said Keith Petrosky, Vineland city clerk. “A public entity can’t have a public Facebook page and then decide what they can censor in and what they can censor out.”
The city clerk cites state public record law for how he reached the decision. State law for public records uses a myriad of examples in its language — including maps, photographs and microfilm — and specifically mentions information and data processed and stored electronically as records.
But Petrosky admits that it’s a double-edged sword and not completely clear-cut.
“The more we get involved in electronic communications, the more questions arise as to what is public record and what is not,” he said. “People have to understand — and by people I mean government officers and government officials — they have to understand that even though electronic communications are easy, and may seem like the quickest and best way to get information out, they have to realize there is an obligation to retain that information for a required time.”
On Vineland Police Department’s Facebook page, it now asks users to remain respectful when making comments and links to a Facebook page explaining how to report offensive comments to Facebook.
According to Ed Purcell of the New Jersey State League of Municipalities, technology has outpaced the law when it comes to managing a social media account and specifically the comments on an account.
“Basically, what’s happening here is we’re trying to put a round peg in a square hole,” Purcell said. “The law wasn’t meant for this stuff. It’s new and it’s modern and we’re trying to apply this law that wasn’t meant for social media to social media.”
There has yet to be any precedents or case law when it comes to government use of social media and what responsibility the record custodian has for the social media.
A lot of municipalities with Facebook pages have even chosen to not accept comments at all, Purcell explained, avoiding issues with comments altogether. By not allowing any comments, the municipality is no longer in the position to decide if any comments are offensive and do not show bias in what it allows, Purcell explains.
But more questions are raised than answers — like what about messenger applications or private Facebook pages of public figures — and the law hasn’t been updated yet.
“It’s one thing to have arguments over whether emails sent on a township server are public records or that data that is stored by township servers are public records but are messages sent via messenger open to public records?” said Walter Luers, president of the New Jersey Foundation for Open Government. “Are the Facebook photos public records? It sounds like a quagmire to me.”
Facebook pages just open up a whole world of public records requests and create a big headache, according to Luers. He suggests that municipalities and public entities keep tight control over social media to avoid places where the law hasn’t caught up to technology.
According to Paff, the question isn’t about public records requests as much as retention of those records.
“When you create a record you can’t destroy it without going through a process,” he said.
Record keepers need to be properly educated so that easily deleted online and electronic records can’t be destroyed — even when done so innocently.
“OPRA is not really the question here,” Paff said. “The question is the retention of records.”
And that’s why the state has a record retention schedules, which directs agencies how long it needs to keep records.
“Technology is evolving and all but the principle remains the same,” Paff added.