Under the South Dakota Public Records Law, agencies are obligated to retain public records, which encompasses "all records and documents regardless of their physical form." As a result, social media falls under the purview of the South Dakota Public Records Law.
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SL 2009, ch 10, § 2.
1-27-1.1. Public records defined.
Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form remains a public record when maintained in any other form. For the purposes of §§ 1-27-1 to 1-27-1.15, inclusive, a tax-supported district includes any business improvement district created pursuant to chapter 9-55.
The Reporters Committee for Freedom of the Press has published an Open Government Guide for South Dakota that provides specific guidance on social media records. The guide suggests that social media content should be handled in the same way as email under the South Dakota Public Records Law. The guide states that email can qualify as a record because the physical form of a record is not significant under the law. Therefore, social media records in South Dakota can also be deemed public records under the same interpretation.
III. STATE LAW ON ELECTRONIC RECORDS
D. How is e-mail treated?
Not specifically addressed.
1. Does e-mail constitute a record?
Physical form of a record is irrelevant under SDCL § 1-27-1.1. Theoretically, email can be a record. However, work-related “correspondence” and “personal correspondence” are protected under SDCL § 1-27-1.5 (12) and (19).
E. How are text messages and instant messages treated?
Same as for emails
F. How are social media postings and messages treated?
Presumably, the same as emails.
The Office of the South Dakota Secretary of State has established a comprehensive social media policy that accounts for public records. The policy explicitly states that social media records are governed by South Dakota public records laws and will be preserved accordingly. This policy is a useful example for managing social media records in South Dakota.
Disclosure and Retention
All social network sites and entries shall clearly indicate that any articles and any other content posted or submitted for posting are subject to any applicable public disclosure laws as well as the record retention requirements of the State of South Dakota.
Content submitted for posting by an employee that is deemed not suitable for posting by a social networking moderator because it is not topically related to the particular social networking site objective being commented upon, or is deemed prohibited content shall be retained pursuant to the records retention schedule along with a description of the reason the specific content is deemed not suitable for posting.
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