The URL can be used to link to this page

Home My WebLink About2.b. City use of social mediaROSEMOU. NT CITY COUNCIL City Council Work 'Session: October 13, 2010 EXECUTIVE SUMMARY AGENDA ITEM: City use of sociaf media AGENDA SECTION: PREPARED BY: Alan Cox, Communications Coordinator AGENDA NO. q,.O, ATTACHMENTS: Legal memos distributed by LMC APPROVED BY: RECOMMENDED ACTION: Guidance from Council members a The City Council set as a goal for 2010 -11 the enhancement. of communications to strengthen the community. One of the outcomes to be`explored is investigating new technical/ communications solutions. Among the possible solutions is the use of "Social media for City broadcast." Staff has been collecting examples of the use of social media by other communities and legal opinions on how those methods should operate under Minnesota law. Staff research has focused on two examples of social media: the network of friends used in Facebook; and the "micro- blogging" service Twitter. Staff 'intends to show examples of each during the Councirs work session' discussion, and it will also be possible to call up examples suggested by Council members. Examples from other cities Among the cities in this region with a Facebook presence are Burnsville, Chanhassen, St. Louis Park,- Blaine; Brooklyn Park, and Mankato. Differences 'among these sites are whether the cities allow the public to post comments; whether the cities limit their. own postings to items already available on their avebsites; the tone of the cities' postings (formal vs. folksy); and whether each city has a single Facebook page or has several divided up by topic (general news, parks and `rec postings, snow emergency notices). Among cities near here with a Twitter feed are Farmington, Burnsville, St. Louis Park, Plymouth, Brooklyn Park, and Mankato. Differences again include whether the city publicly responds to questions from other users posted on Twitter; whether all postings by a city point back to its website; the tone of.the "tweets "; and whether a city has more than one feed, divided by topic. Legal issues The summaries in this section are based on legal memos collected by the`Assistant City Administrator during discussions of social media at meetings of the League of Minnesota Cities. Portions of the memos are attached to this packet item. Additional information from the League, including a memo on related issues such as dealing with employees who have their own social media presence and the considerations for elected officials who use social media, is available at httl2://www.ltnc.org/media/docutnent/1 /socialmediaandcities.pdf. Because social media are a relatively recent innovation, there are no Minnesota laws that directly guide what cities might do with such sites, and there is little if any case law nationwide about disputes on the subject. Generally speaking, it appears that Minnesota's record - keeping requirements would not take effect unless postings qualified as "government data" used in "official transactions." As-an example, a public meeting notice is posted officially at City Hall. A posting in social media teferringto the original information would snot be considered original government data. If comments from the public were allowed, those comments,A generally would be. considered government data and would fall under records retention requirements. There are several First Amendment considerations for cities that permit public comments on social media services. A " "limited public forum" can be created for certain groups or topics but cannot discriminate by viewpoint. Failure to adhere to those limits in decisions about whether to allow some but not all comments or to delete some comments but not others could turn the city pages into a public forum like a sidewalk in which no content can be edited. Vague statements such as "posts may be deleted for any reason" or failure to enforce policies consistently could also result in the creation of a public forum. Review by Youth Commission Staff participated in a general discussion of social media during the July and September meetings of the Rosemount Youth Commission. 'Members shared their experience that high- school aged residents often are Facebook users but few use Twitter. The Commission generally agreed that the City of Rosemount should have a social media presence, but should not - expect teens to flock to the sites until they are proven to provide information of interesf to that group. Commission members split on the question of whether it is appropriate .to allow public comments and interaction with the City on those sites; the consensus seemed to be that the City's pages should start with comments turned off, and possibly enable the feature at a later date. Commission members generally did not think it would be useful, at least in the near'term, for the Youth Commission to create its own Facebook page. Issues for Council, guidance • Should the City create and promote a presence on social media services? • Should the City create both Facebook and Twitter accounts? 2 • Should the City's Facebook page allow public comments and questions? • Should the City respond publicly to Twitter messages directed toward it? K t a Overview of Statutes and their Impacts on Social Media: DATA PRIVACY, RECORDS MANAGEMENT AND SOCIAL MEDIA f By Corrine A. Heine Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200,South Sixth Street Minneapolis, MN 55402 cheine @kennedy- graven.com 612 - 337 -9217 1 II. SOCIAL MEDIA AND THE DATA MANAGEMENT STATUTES 'A computer lets you make more mistakes faster than any invention in human history — with the possible exception of handguns and tequila." Mitch Ratcliffe A. Official Records Act. 1. Cities typically don't use social media to document their "official activities. If, however, cities did use Facebook or Twitter for official activities, the Official Records Act would require that the records be preserved in a - permanent form and protected from deterioration, loss, or mutilation. } - B. The MGDPA: When is Electronic Data "Government Data" Subject to the Act? I - 1. Data Posted by the City. The MGDPA applies to all "government data," which is defined as all data collected, created, received, maintained or disseminated by an government entity, regardless of its physical form, storage media or conditions of use. Minn. Stat. § 13.02, subd. 7. Note that the "government data" encompasses all physical forms of data, including electronic data. See, e.g., Advisory Opinion Nos. 00 -019 (email and back -up _. tapes), 01 -090 (videotapes). Data that is posted by the City to a social media site is "government data." Obviously, the City should take care to post only public data on its site. 2. Data Posted to the City's Page by the Public. If the city allows the public to post comments to its page, those comments are government data subject to the MGDPA. The city's social media site should include a notice that all information posted to the site is publicly accessible. Also notify users that the City reserves the right to remove posts that contain data classified as not public under the Minnesota Government Data Practices Act. 2. Employees with Personal Pages. There are two data practice concerns with employees who have personal pages on social media sites: the classification of data created by the employee's use of the site 'fi-om a government computer; and the need to prevent disclosure of government data that is classified as not public. Both of these concerns should be addressed in a, City social media policy. # a. Data created by a government employee on a government computer, where the entity's policies allow personal use of computers, and where the data is personal and not work - related, is not "government, data" subject to the MGDPA. Because the MGDPA does not apply 4 to the data, an entity has no legal obligation to provide access to the data. Advisory Opinion No. 01 -075. However, where the entity has relied upon the data as a basis for discipline, the data becomes `government data" subject to the MGDPA. Advisory Opinion No. 02 -049. So if a request is made for information about what employees have accessed Tiacebook from a city computer, that data is- not subject to the - act, unless the employee has violated a city -use policy. If so, the data would be private until final discipline is imposed, per Minn. Stat. § 13.43. b. City employees should receive training on data practices requirements, particularly the prohibition against release of data that is classified as not public. The concern with social media is that, if an unauthorized disclosure occurs, the dissemination is instant and much wider than would occur from a "slip" during a one -on -one conversation. C. Records Retention and Electronic Data. The Records Managdment Statute prohibits government entities from destroying any .,,government record" unless the destruction of the record has' been approved by the records disposition panel. Violation of the statute is a misdemeanor offense. Minn. Stat. § 138.225. 2. "Government record" does not include data that does not become part of an official transaction. Those cities that use social media to disseminate information are not using it for official transactions. Typically the data posted to social media sites by the city is essentially a duplicate of records that exist elsewhere at the city. However, if the city does post original content to a social media site, and if that content is part of an official transaction, the record would need to be retained according to the record retention schedule. The same applies to content that the city allows to be posted to its social media site by the public. 3. If social network postings were considered government records, they would be subject to the retention requirements of the act. The records disposition panel has authority to approve retention schedules, and anything on an 'approved schedule may be destroyed according to the schedule. Minn. Stat. § 138.17, subd. 7 Most cities have adopted "the General Records Retention' Schedule, available at the MCFOA website. The General Records Retention Schedule for Minnesota Cities , at ADM 03050 establishes a retention period of "until read" for "transitory messages, e -mail or phone messages of short -term interest which are considered incidental and non -vital correspondence. Postings to a social network site might come within this provision. z r SOCIAL MEDIA, THE FIRST AMENDMENTAND RELATED ISSUES By Roger N. Knutson Campbell Knutson, P.A. rknutson @ck4aw.com 651.234.6215 I. Public Forum The government "shall make no law... abridging the freedom of speech," U.S- Const., Amend. 1. In traditional public forums such as sidewalks, parks and streets, any restriction on the content of the speech is subject to strict scrutiny and must serve a compelling state interest. Pleasant Grove City, Utah a Summum 129 S.Ct. 1.125 2009 2. Limited Public Forum A "Limited Public Forum" is d nontraditional forum opened on a limited basis for certain categories of speech. The forum is limited to certain groups or certain topics but cannot discriminate on the basis of viewpoint. Goad News Club v. Milford Cdntral School, 533 U.S. 98 (2001) Access to a nonpublic forum can, be based on subject matter or speaker identity so long as the distinctions drawn are reasonable and viewpoint neutral. Cornelius v. NAACP .Legal Defense and Ed. Fund, Inc., 473 U.S. 788 (1985). 3. Social Media t There are no reported decisions categorizing, government blogs, Facebook pages, twitters or other social media as traditional public -forum or a limited public forum. To establish a limited public forum, policies must be enacted on the appropriate use of the forum. The policies can I restrict the categories of the speech but not the speaker's viewpoint. Don't use statements such 6: as "posts may be deleted for any reason." If you have policies but don't enforce them; your limited public forum could become a public forum. 1497551 1 j u