(o) “Public record” means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.

(g) A court may impose a civil penalty for a violation under subsection (c) against one (1) or more of the following:

(1) The individual named as a defendant in the action.

(2) The public agency named as a defendant in the action.

(h) In an action under this section, a court may impose the following civil penalties:

(1) Not more than one hundred dollars ($100) for the first violation.

(2) Not more than five hundred dollars ($500) for each additional violation.

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“Social media has not been addressed ad nauseum in prior opinions. The ever-changing landscape of electronic communication presents unique challenges for determining the accessibility of public information. Although I do not suggest the Town intentionally violated the APRA, it is important to note public agencies should not use social media as a way of avoiding the obligations of the law. Based upon Ind. Code § 5-14-32(o):

“Public record” means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.

It is my opinion that Facebook data clearly falls within this definition. If a public agency creates a website or social media account and maintains its content, then any records request relevant to that site would need to be fulfilled. This would be the case even if the agency needs to petition the site’s server to gain access to the information. It is no different than any other third-party contractor or vendor an agency would employ to maintain certain information. It is recognized it may take some time to retrieve, but it must be released pursuant to a request. The Town is obligated to satisfy the information request and work with the third-party vendor to do so.

As to the allegation the site has deleted your comment(s), it is my opinion an agency can moderate comments to a social media site as they see fit. For example, if an inflammatory or inappropriate comment is posted to a site, then an agency, as administrator of the site, has discretion to remove it. I am aware of nothing in case law or statute that would restrict the discretionary rights of a public agency to moderate public forums. The caveat to this is the agency must retain a copy of the comment or discussion and also make them available for inspection. This can be in electronic format as a file of a screen shot or a comment print-out or however the information presents itself. The important consideration to remember is that all comments to an agency web site must be retained.”

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(2) City and department policies, rules, regulations and standards of conduct apply to all employees engaged in social media networking activities while conducting City business. Use of your City email address and communicating in your official capacity will constitute conducting City business. All departments that use social media are responsible for complying with applicable federal, state, and City policies. This includes adherence to established laws and policies regarding copyright, records retention, Freedom of Information Act (FOIA), privacy laws (HIPPA), and information security policies that may be established by the City IT department.

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 Social Media as Public Records The Public Records Act (KRS 171.420-171.740) defines public records as, “…documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.” Social media content meets this definition and must be managed in accordance with all applicable laws and regulations.

KRS 171.640 and 171.680 and Kentucky Administrative Regulations, Title 725, Chapter 1, Archives, place responsibility with each agency to manage public records created or received by that agency. Agencies should consult the General Schedule for State Agencies or the Local Government General Records Schedule along with their agency specific records retention schedule, to determine the appropriate retention period for records on social media sites.

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Commenting on an LFUCG Social Media Site

Lexington-Fayette Urban County Government agencies share information, images and video with the public through external social media websites. Comments made by the public to these sites are reviewed and, while comments will not be edited by LFUCG personnel, a comment may be deleted if it violates the comment policy described here.

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Long Description: The opinions expressed by visitors to this page do not reflect the opinions of the department. Comments will be monitored and the department reserves the right to remove obscenities, off-topic comments and personal attacks. Any content posted or submitted for posting is subject to public disclosure.

Excerpt from the Lexington Social Media Public Comment Policy:

Open Records

LFUCG social media accounts are subject to the Kentucky Open Records Act. Any content maintained in a social media format that is related to LFUCG business, including a list of subscribers and posted communications, is a public record. Content posted or submitted for posting is subject to public disclosure under the Kentucky Open Records Act.

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