RAMSEY RAMERMAN, Assistant City Attorney, City of Everett                                                   CITYWISE


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Government and Social Media: The Legal Issues to Consider

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This column by attorney Ramsey Ramerman details important concerns for local elected officials and local governments to consider when they use social media like Twitter, Facebook and blogs. The column is particularly useful for Washington State, where Ramerman is an assistant city attorney for the city of Everett. This reprint appears with the kind permission of the Association of Washington Cities. This column first appeared in the September 2009 issue of their magazine, CityWise.

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Transcript of "Government and Social Media: The Legal Issues to Consider"

  1. 1. RAMSEY RAMERMAN, Assistant City Attorney, City of Everett CITYWISE LOOK BEFORE YOU TWEET LEGAL AFFAIRS THESE TIPS CAN HELP YOUR CITY AVOID THE SNAGS OF WEB 2.0. WHAT CAN ANYONE really accomplish in 140 characters or voices heard by posting comments. less? If the fallout from a seemingly innocuous Twitter mes- Before jumping to follow Newcastle’s lead, however, cities sage posted in June by a Mukilteo city councilmember is any should be sure to inform themselves about the potential risks, indication, you might just implicate your city in an Open Pub- because the state’s open government laws have not caught up lic Meetings Act violation, create significant potential liability to this new technology. under the Public Records Act, and, most importantly, erode hard-earned public trust. Risks concerning the Open Public Meetings Act The most immediate risk that social networking sites pose to Social Networking open government compliance is that they will facilitate com- Social networking sites such as Twitter and Facebook are known munication among government employees too well. The June as Web 2.0 because, unlike first-generation websites, they allow incident in Mukilteo actually raised a more traditional aspect of users to interact with other users directly. Social networkers can public meetings law; the councilmember’s post comments on blogs, send instant messages through sites Twitter post, or “tweet,” reported an o - like Facebook and MySpace, and forge direct contacts via one the-record physical gathering of city o - Ramsey Ramerman of more than 100 microblogging sites like Twitter and Plurk. cials. But if a purely electronic communica- has worked When used properly by a city or other government, such tion string—such as a series of tweets, blog with hundreds websites allow city employees and elected o cials to engage comments, or Facebook posts—involves a of local govern- ments to help the public to an unprecedented degree, especially in smaller majority of the city council commenting on them increase jurisdictions. The City of Newcastle’s blog, newcastle411.com, the same topic, it may also qualify as an il- transparency attracts an average of over 3,000 unique visitors per month— legal meeting in violation of the OPMA. while preserving nearly one-third of its population. The blog not only allows The risk was articulated by a 2001 the public trust. Newcastle residents instant access to city and community news decision in which the Washington Court of with several new posts a day, but also allows them to make their Appeals ruled that an e-mail exchange in- Common Sense Advice Over the Decades 1969 1979 1989 1999 2009 Don’t write any- Don’t record Don’t put any- Don’t take pic- Don’t tweet or thing down that anything that you thing in an e-mail tures of anything post anything that you don’t want to don’t want to see that you don’t that you don’t you don’t want to see on the front on the front page want to see on the want to see on the see on the home- page of the local of the local paper. front page of the front page of the page of the local paper. local paper. local paper. paper’s website. SEPTEMBER/OCTOBER 2009 CIT Y VISION MAGAZINE 25
  2. 2. CITYWISE LEGAL AFFAIRS Procrastination is a problem volving a majority of a school board qualified as a “serial when it comes to doing my meeting” that violated the OPMA. A “meeting” occurs under the OPMA anytime a majority of a city council discusses city business. A “serial meeting” is a series of disaster plan. As a business meetings that individually don’t involve a majority but collectively do include a majority. If a majority of city councilmembers communicate through tweets, com- owner I have a lot to do. It’s ments, or blog posts, this may also qualify as a serial meeting—even if these communications are made on websites open to the public. Cities should thus have clear not like a disaster is going to standards about how councilmembers may post, tweet, or comment. happen tomorrow. Besides, Public Records Act and records retention risks Councilmembers’ and city employees’ tweets, blog we have that new business posts, and comments qualify as public records if they relate to city business. But if someone makes a public records request for these documents, the PRA is not clear pitch. I’ve been waiting for about what has to be produced. The best argument— recently expressed in an informal opinion by the Sec- retary of State’s o ce—suggests that public agencies this to happen for a while need to produce only the substantive content of the post, and not computer code or the “look and feel” of the so- now. I’ll get the disaster plan cial networking site. (You can find a copy of this infor- mal opinion at the July 8 post “Should Elected O cials Use Blogs and Web 2.0 Sites?” on Foster Pepper’s blog, finished eventually. Nothing www.localopengovernment.com.) But the Public Records Act is broadly construed in to worry about, it’ll happen. record. (The Supreme Court has accepted review in O’Neill and will hear oral arguments this fall.) Whether natural or man-made, at least 2 Wood v. Battle one in four businesses affected by a disaster Ground School never reopen. Though emergencies are District (Wash. Court of Appeals, unpredictable, when you have a plan in place 2001): An e-mail exchange you can adapt, recover and stay in control. among school board mem- Significant bers amounted to an illegal meeting under the Open It’s never too late to protect your business until it is. Cases Public Meetings Act. 1 O’Neill v. City of 3 Putnam Pit, Inc. v. Shoreline City of Cookeville Make a plan. (Wash. Court of Appeals, (6th Cir. U.S. Court of 2008): Each copy of an Appeals, 2000): Once a city e-mail is a unique public allowed third parties to post READY.GOV record under the Public Records Act because each links on its website, the First Amendment prohibited the contains unique “metadata,” city from refusing to post the computer-generated a link to a website that was “DNA” of an electronic critical of the city.
  3. 3. Think of first favor of disclosure. Just last summer, a court ruled in O’Neill v. City of Shoreline that Shoreline had to produce for PROVIDING SOLUTIONS a city councilmember’s exact e-mail message in elec- tronic format, rather than a copy of the same message The Strategic Procurement Source for Public Agencies sent to a di erent councilmember, because each e-mail message has unique computer-generated “metadata.” AWC is a sponsoring member of the US Communities Govern- (For full disclosure, it should be noted that the author ment Purchasing Alliance, a national purchasing program for public agencies that gives you significant price and resource sav- of this article represents former councilmember Mag- ings. With US Communities, local governments can piggyback gie Fimia, the city’s co-defendant in the O’Neill case.) on publicly bid government contracts. You pay no membership A court making a similarly broad interpretation of the fee and no minimum purchase is required. PRA might hold that a city must also produce the com- For detailed information, visit www.uscommmunities.org or puter code behind the post. If that code is the code for a call US Communities toll-free at 1-866-GPA-SHOP for an automated listing of product and vendor contact information. third-party site like Twitter, however—as in the Mukil- teo case—there is no way a city could produce the code, • Time & Resource Savings leaving the city in PRA limbo. • Competitively Solicited Contracts Posts on third-party social networking sites also pose challenges for records retention. If the site erases a post, • Quality Products & Services or the city edits a post, the original content could be lost. Therefore, cities should consider maintaining a log of all • Great Pricing posts on third-party sites to ensure that they can produce • No-Cost Participation the posts if requested. Another idea would be for the city to post all such content on its website and simply use so- www.uscommunities.org cial networking sites to “republish” the information. This method provides instant disclosure at no cost—and as long as the city can easily retrieve all edits to its website, records retention requirements are covered, too. First Amendment risks Another significant area of risk is perhaps the most se- rious: the risk that a city will violate the First Amend- ment. When a government creates an electronic public Just what does forum—such as a comment section on its blog—that fo- the fabric of a healthy rum creates First Amendment rights that will protect public responses, even when those posts unfairly criti- society look like? cize the city or public employees. A city cannot prohibit Usually navy blue or remove unwanted comments because that would be a or plaid. “viewpoint” restriction, which is almost always prohib- ited by the First Amendment in public forums. If a city allows comments, it should have a clear posting In many of the poorest countries on And when they enter local government, earth, girls are still denied the right to corruption is reduced. The power of policy that has only viewpoint-neutral limitations such an education. Which robs them of education is astonishing. And you have as restrictions on profane comments or threats. But the their dreams, and robs their families the power to help make education for city must also be ready to host negative comments that and societies of their talents and girls and women a global reality. Join the movement. Call 800-521-CARE or visit may be counterproductive to city initiatives, employee contributions. At CARE we’ve found www.care.org f that educating girls, and unleashing morale, and even the public’s perception of the city. their potential, is one of the fastest Social networking sites may just be the best thing to ways to improve conditions in these happen to democracy since the 19th Amendment. But places. That’s why we’ve established Washington’s open government laws were not written more than 100 education programs in 36 impoverished countries. With each to handle the Web, much less Web 2.0. Elected o cials year of school, wages go up 10 to and public employees should proceed with caution be- 20%. Educated women start new fore they start using these sites. And all public employ- business ventures, creating income This space generously donated. ees must be reminded: Don’t tweet or post anything that never existed in these societies. Photo © Jason Sangster/CARE that you don’t want to see on the homepage of the local paper’s website.

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