Local governments need to be aware that all forms of social media and digital communication (for example, text messaging, Twitter, and Facebook) used in the performance of official duties may be viewed as correspondence subject to public records retention and FOIA requirements under state law. Before using, or authorizing the use of text messaging or other similar communications, local government agencies should first consider the retention period and disclosure requirements for their particular agency, whether or not compliance with the required retention period is practical, and ensure that these types of communications are properly retained and stored if the municipality elects to use social media and other forms of digital communication.
The applicable retention period varies according to numerous factors, including the type of communication, the substantive content, and the persons communicating. For example, general correspondence between government employees typically has a minimum retention period of 2 years or more. Similarly, government employees should be wary of using their personal phones to send work-related text messages. Doing so likely makes all of the contents of the phone subject to subpoena or examination by a department’s FOIA coordinator.
Unfortunately, despite widespread use of social media and digital communication, the proper interpretation of the state’s retention policies remains somewhat unclear. Until more guidance is provided, government agencies may want to avoid the use of social media and text messaging, or implement other policies to ensure compliance.