Few government organizations have dealt with how Facebook, Twitter use affects compliance
Part 2 of a 3-Part Series
“A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
— James Madison (1751-1836), Bill of Rights author and fourth president of the United States
By far the most lively panel discussion covered by The Austin Bulldog during the City of Austin’s Open Government Symposium held March 17 dealt with how social media and trends are affecting governmental organizations and how those organizations comply with open government laws. A standing room crowd witnessed the discussion in the Board and Commission meeting room at City Hall.
A panel moderated by Jason King, senior attorney and deputy ethics advisor in The University of Texas System’s Office of General Counsel, included the government official in charge of the Texas Attorney General’s Open Records Division and an attorney whose firm represents and advises numerous small Texas cities on matters of open government.
Attorney Alan Bojorquez of the Austin-based Bojorquez Law Firm PLLC serves as attorney for 22 general law and home-rule municipalities across the state. He is the author of the Texas Municipal Law and Procedure Manual (5th Edition).
Bojorquez said, “Social media technology is always changing and the law can’t keep up with technology.”
“Public officials are trying to conduct business but don’t know how to do it. The answer should be simple, but it’s not. It’s gray, and has been for many years.”
Having just returned from a Washington, D.C. gathering of the International Municipal Attorneys Association, for which he serves as the Texas Board chairman, Bojorquez said everyone was talking about the issue of social media because none of the states have figured out how to deal with it.
Bojorquez said, “At some point we need to guarantee that our governmental body meetings are not just ceremonial. Those being governed need to be able to view the governing process.” And with respect to social media, he said, “It’s difficult to figure out what the rules are.”
He also noted there are personnel issues involved in terms of how far into an employee’s use of social media a governmental body can go to control what employees are doing during or outside working hours.
Bojorquez said the Texas Open Meetings Act can be violated when elected officials participate in quorum discussions in private, on the phone, via e-mail—and also by using Facebook.
Government agencies need a social media policy
“The biggest thing I recommended for my clients … is if they are going to get into the issue of social media, they should have a basic policy.”
He said that TexasMunicipalLawyers.com (his firm’s website) has a free sample social media policy a city could adopt. (The website also provides access to an article written for the Texas Tech Administrative Law Journal by Bojorquez and Damien Shores, “Government and the Net: Bringing Social Media Into the Light.)
Bojorquez recommends that government agencies establish a policy about what employees could have on their social media pages. “At very least you may want to have disclosure that it’s personal opinion,” he said.
One of his client cities, West Lake Hills, has programmed its servers so that employees cannot get access to Facebook during regular business hours, he said. “They’re very happy with that policy. If employees want to access Facebook during the day they will have to do it through other than city hall.”
Think before posting to social media
“People post ridiculous things they don’t think about,” Bojorquez said. He cited several examples of inappropriate use of social media by government officials:
• A city manager posted on his Facebook page that the city has a racist issue in town and all the perpetrators are people of color.
• A city manager posted that if you believe in gay marriage you must be a Democrat—an item picked up by a Waco newspaper.
• A city secretary posted to Facebook a message to a former city employee that it’s good the employee had left because “the witches are out today.” “She thought the city manager was her ‘friend,’” Bojorquez said.
“I urge my clients to think about it before posting,” Bojorquez said. “If you are going to use (social media) you have to know the rules and play accordingly.”
Bojorquez said that before he was on Facebook he had a young single woman working for him and people were telling him about the racy photos she was posting. “I agonized” over establishing a social media policy and decided it was simple: “Don’t embarrass me—that was my social media policy. And don’t embarrass the public officials that pay us very well.
“I called it my ‘front page of the (Austin American-) Statesman policy.’ If you’re not comfortable putting in on a … billboard on I-35, don’t put it on Facebook. That’s advice I give clients. I challenge them to do that.”
The attorney general’s perspective
Amanda Crawford has been chief of the AG’s Open Records Division since 2008 and an attorney with the AG’s office since 1999.
“The Attorney General’s office is charge with interpreting and enforcing the Texas Public Information Act,” Crawford said. “As far as social media goes, the Public Information Act question is easy: If it’s tweeted or put on Facebook, it’s public.”
She said that more information is being made available everywhere through social media and hand-held devices.
Public employees, like everyone else, are accustomed to texting things back and forth and they’re at work and forget where they are, or forget they have a city device and not a personal device. Or they use personal resources for public business.
“Our interpretation is it’s the content of the communication and not the media through which it’s transmitted,” Crawford said. “If you use a private account to transmit public business, it will be public.”
This was precisely the issue over which The Austin Bulldog sued the mayor, council members, and City of Austin on March 1, 2011, after they had refused to turn over e-mails about city business the elected officials had exchanged on private accounts.
To withhold private e-mails about city business flies in the face of at least four open records opinions issued by the Texas Attorney General, which state that e-mails about government business that were created or received on personal accounts are public records (OR2003-0951, OR2003-1890, OR2005-01126, OR2005-06753) and thus are subject to release under the Texas Public Information Act.
The result of the lawsuit was that the mayor and council members released varying numbers of e-mails from private accounts and then took steps to reform the city’s electronic communications policy, not only for themselves but also for the city’s some 12,000 employees and members of the city’s 55 boards and commissions.
Those e-mails exchanged on private accounts, once obtained, exposed the fact that the mayor and council members were deliberately communicating about major items of public business through back channels. Some of the topics discussed were:
• How to keep a majority of the council members voting in favor of building a new water treatment plant at a cost of $500 million, so the project would not be postponed or halted.
• Why the new water treatment plant was not needed.
• Whether to settle a lawsuit against the city brought by the family of Nathaniel Sanders III, who was shot and killed by a police officer.
• How to coordinate the council members positions so they could achieve a unanimous vote on the 2010 performance evaluation of City Manager Marc Ott.
Moderator quizzes panelists
King noted that city managers don’t typically collect, assemble or maintain information posted on Facebook.
Crawford said the attorney general has an official account on Twitter and also has a personal account. “The reason you would care is that it’s subject to the Texas Public Information Act,” she said. “The Facebook policy may not comply with your government agency requirements. You may need to keep a copy.”
King asked about how open government laws must deal with information stored on cloud servers.
Crawford said the key question is who owns the information when it’s uploaded and how that affects issues such as attorney-client privilege. She suggested reading user agreements for cloud services so the information uploaded does not become the property of whoever operates the servers “and you’re not waiving attorney-client privilege.”
Bojorquez came at the question from a different angle, noting that there have been cases in which cities have prevailed in asserting the attorney-client privilege for information even after it has been leaked to the media. “Only the city council can waive attorney-client privilege. I’ve seldom seen them vote to waive that privilege.”
King asked the panelists, “What advice would you give cities for the Texas Public Information Act regarding social media?”
Crawford suggested that governmental agencies could best use social media to get the word out about information already posted to the agencies’ websites, things that have already been released.
“You can use social media tools to tell people that information is available. That’s a great idea. It promotes transparency and saves yourself work. The more information that’s on your website, the fewer open records requests you get.
“But make sure you maintain records of what you are doing (on social media),” she said.
Want to get the full flavor of this panel discussion? You can watch the 52-minute video on the City of Austin’s Channel 6 video for Open Government: Social Media and Trends.
Coming Wednesday: Litigation Challenges Open Government Laws
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s coverage by making a tax-deductible contribution.
Related Bulldog coverage: This is the 40th story covering the City of Austin’s problems and progress in dealing with open government issues.