The Michigan Freedom of Information Act ("FOIA") regulates the disclosure of public records by all public bodies in the state, including social media records. Failure of government agencies to comply with FOIA's public records laws may result in civil penalties and fines.
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(e) “Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.
(h) “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.
15.240b Failure to comply with act; civil fine.
Sec. 10b. If the court determines, in an action commenced under this act, that a public body willfully and intentionally failed to comply with this act or otherwise acted in bad faith, the court shall order the public body to pay, in addition to any other award or sanction, a civil fine of not less than $2,500.00 or more than $7,500.00 for each occurrence. In determining the amount of the civil fine, the court shall consider the budget of the public body and whether the public body has previously been assessed penalties for violations of this act. The civil fine shall be deposited in the general fund of the state treasury.
Attorney Steven Mann, in an article titled 'The Legalities of Social Media', published by a partner of the Michigan Municipal League Business Alliance, highlights that social media records in Michigan have the same retention requirements as other types of records. The article also emphasizes that failing to preserve social media records can lead to criminal charges.
“…social media, like any other public record, must be retained by the public body pursuant to record retention laws. Public records of local government entities actually belong to the State and may only be disposed of in accordance with a duly adopted record retention schedule. Failure to properly preserve public records can constitute a misdemeanor criminal act.”
“Proper retention requires that the communications be preserved, either electronically or in paper format. Preserving Facebook, Instagram, Twitter, and LinkedIn communications generally requires archiving tools and a staff to store printed or digital copies, or engaging a company to provide social media archiving services.”
The Social Media Community Guidelines of the State of Michigan provide an explanation of how social media content is classified under the Michigan Freedom of Information Act (FOIA):
“All content posted on official state of Michigan social media pages is public record. Content removed from official state of Michigan social media sites that is archived becomes public record as well. With limited exceptions, such content is therefore not exempt from FOIA requests. FOIA requests should be submitted through official state of Michigan request processes.”
As social media gains traction as a key communication channel between public entities and citizens, some local government agencies are enacting agency-specific social media policies to ensure effective utilization. The Washtenaw County Sheriff's Office in Michigan has developed a comprehensive Procedural Guideline - Use of Social Media document that specifically outlines policies and retention requirements for social media records in Michigan.
2. Procedures
e) Social media content shall adhere to applicable laws, regulations, and policies, including all information technology and records management policies
(1) Content is subject to public records laws. Relevant records retention schedules apply to social media content.
(2) Social media conducted on behalf of the County is subject to the State of Michigan Record Retention Laws and Policies for Local Government and the Michigan Freedom of Information Act. Any content maintained in a social media format related to County business, including communications posted by the County and communications received from the public, is a public record. The County will assist departments, where needed, with the retention of all related content and complying with all retention schedules. As of 2019, the County is using the service “Archive Social”
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