Sunshine and Public Record Laws in the Age of Facebook?

 

Here in Escambia County there’s been a lot of discussion lately concerning the social media activity of elected officials, particularly over the conduct of County Commissioner Doug Underhill. However, the issue of what is acceptable online behavior for public officials and what online communication constitutes a public record isn’t unique to either this county or Florida. This article is focused on Florida, which has extensive sunshine and open records laws, but a lot of the information is pertinent to other states as well, but the specifics will vary from state to state.

Florida’s Sunshine Law has three basic requirements. First, board and commission meeting must be open to the public. Second, reasonable notice of such meetings must be given. Third, minutes of the meetings must be taken and recorded. Under this law any communication between two or more members of the same board or commission constitutes a meeting, whether in person or through electronic communication. A government official using Facebook to opine on a current issue is fine, but if another member of that board responds that would constitute communication between board members and would be a violation. I’m unaware of any recent violations of this rule in Escambia county.

Where it starts getting dicey is when politicians start blocking members of the public from their social media. Federal courts have consistently ruled that government officials can’t block the public from their social media if they discuss government business. Also, if they allow comments, it constitutes a public forum which must be open to members of the public without hiding or deleting comments. There is no distinction between a politicians “official” Facebook page and their personal account, it’s the content that determines if individuals can be blocked, not the type or format of the media.

Here in Escambia county, District 2 Commissioner Underhill violates these rules in a couple of ways. First, he regularly discusses local issues on his personal Facebook profile even though he has reportedly blocked individuals from it. On his Commissioner Facebook page, to the best of my knowledge, he doesn’t block people, but he does hide comments. By using the hide comments function he is limiting who sees the comments made by others which is inconsistent with a public forum. Finally, Comm. Underhill also regularly posts his opinions on local issues in a Facebook group that has systematically blocked individuals who are political opponents of the Commissioner. This is a legal grey area, but it seems likely that the courts would rule this is an illegal attempt to circumvent the rules about blocking people from your social media accounts.

The Sunshine law is only part of the issue, the other component is the public records law. In Florida all documents, papers, letters, tapes, photographs, etc., regardless of the physical form, characteristics, or means of transmission, made or received constitutes a public record. Under F.S. 119.07(1)(a), “every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions.” Florida’s Attorney General has ruled that blogs and social media posts and the comments are all public records and must be made available to the public.

As a result of this, all social media posts made by a public official concerning their office are public records and a copy must be maintained separate from the social media’s website. This is true regardless if the post was on an account controlled by the official or on some other public forum. This also applies to all the comments on the official’s posts. A comment can be removed if it violates established standards, but a record of the post must be maintained. Knowingly deleting a post or comment without maintaining a record of it constitutes the illegal destruction of a public record which is a first-degree misdemeanor punishable by up to one year in prison and/or a $1,000 fine.

This was likely the primary reason behind Escambia’s Board of County Commissioner’s social media policy which states, “Commissioners shall not discuss County business on social networking sites.” They likely understood when they made that policy that policing the public records requirements would be difficult or impossible. Despite this policy, Commissioner Underhill regularly post county business on social media. Since the county doesn’t have any mechanism in place to automatically capture all social media post the responsibility falls on Underhill to keep a record of all his Facebook and Twitter activity and to make them reasonably available upon request.

Doug Underhill is well aware of all this but appears to flagrantly violate the public records laws. After his re-election last November, he deleted his Commissioner Facebook page and replaced it with a new page with a slightly different name. He’s required by law to keep a record of every post on both his old and new Facebook page along with all the comments. There has been a public records request for the posts from his deleted Facebook page which he has ignored. Either he deleted these public records or he’s refusing to make them available, either way he’s in violation of the law.

In addition to violating Florida’s public records laws and the County’s social media policy, he’s putting Escambia County in financial jeopardy. In 2013 an incident known as “textgate” occurred in Orange County in which some county leaders deleted text messages related to a proposed ordinance. The officials were fined $500 and the county had to pay $90,000 in legal fees for the plaintiff. This was considered a light sentence because the individuals were unaware that text messages were public records. Doug Underhill won’t be able to claim ignorance, he has been in open violation of Sunshine and public records laws for years now with no action being taken by the county. It’s likely that by turning a blind eye to his behavior the county has put itself in legal jeopardy in the event of a constituent lawsuit. I’m calling on the Board of County Commissioners to pass an enforceable social media ordinance for public officials with clear roles and responsibilities for the maintenance of public records and penalties for failure to comply.