Under Montana Code Annotated, Title 2, Chapter 6, social media records fall under the purview of the Montana Public Records Act. The Act defines records as any material, including electronic records, photographs, documents, and more, irrespective of their physical form or characteristics. Therefore, social media posts made by government entities are covered under this law.
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(1) (a) “Public records” includes:
(i) any paper, correspondence, form, book, photograph, microfilm, magnetic tape, computer storage media, map, drawing, or other document, including copies of the record required by law to be kept as part of the official record, regardless of physical form or characteristics, that:
(A) has been made or received by a state agency to document the transaction of official business;
(B) is a public writing of a state agency pursuant to 2-6-101(2)(a); and
(C) is designated by the state records committee for retention pursuant to this part; and
(ii) all other records or documents required by law to be filed with or kept by any agency of the state of Montana.
(b) The term includes electronic mail sent or received in connection with the transaction of official business.
The Montana Operations Manual (MOM) serves as a comprehensive resource for the policies, procedures, and standards governing Montana state government operations. The manual features a section called "Guidelines for Social Media Use," which recognizes the significance of social media in government and clearly states that communication to or from state personnel through social media is likely presumed to be a public record, as per Montana law (§ 2-6-110, MCA), which includes electronic records.
I. Purpose
The State recognizes that the internet provides unique avenues to participate in discussions and share information with customers and the public. Social Media in particular offer ways to communicate with a broad range of individuals and groups who are using the internet rather than traditional forms of media for communicating and learning.
VII. PUBLIC RECORDS
Under Montana law, public records include records in electronic form (§ 2-6-110, MCA). Therefore, communication to or from state personnel through Social Media is likely presumed to be a public record. If a communication is a public record, then the Secretary of State’s General Records Retention Schedules provide guidance regarding how long certain types of state government records must be kept. The Secretary of State’s website at http://sos.mt.gov/Records/index.asp provides information regarding public records and records retention schedules for public records.
A public record is subject to disclosure upon citizen request. See §2-6-102, MCA. Since citizens using state government Social Media sites may be unaware of public record laws, an agency using Social Media should post a statement on the social networking site indicating that communications on the site are presumed to be public records subject to disclosure to third parties.
Numerous cities and counties in Montana have already implemented policies that explicitly state that social media records are subject to the Montana Public Records Act. For instance, the City of Great Falls acknowledges that posts made on social media platforms, like email, may be considered legal records of the agency.
Further, please be advised that you participate at your own risk, taking personal responsibility for comments, username and any information provided. Content of social media sites is an effective and accepted form of communication, but should not be construed as private and the posting of comments on social media sites creates a transitory record. These types of records are not official records, however like e-mail, posts to social media sites may constitute agency legal records. The City of Great Falls will comply with current Montana laws and comply with the laws and guidelines for Montana Records Management regarding the retention of social media content.
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