In Delaware, social media records are considered public records and fall under the jurisdiction of the Delaware Freedom of Information Act. This law defines public records as any information related to public business, regardless of physical form, including electronic information. Therefore, social media records, regardless of their format, are subject to public access and retention requirements under the Act.
§ 10002 Definitions.
(l) “Public record” is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.
§ 501. Statement of legislative intent; short title.
(a) The General Assembly finds that public records are essential to the administration of state and local government. Public records contain information which allows government programs to function, provide officials with a basis for making decisions and ensure continuity with past operations. Public records document the legal responsibility of government, protect the rights of citizens and provide citizens with a means of monitoring government programs and measuring the performance of public officials. State and local government records also reflect the historical development of the government and of the citizens which it serves. Such records need to be systematically managed to ensure preservation of historically valuable materials, to provide ready access to vital information and to promote the efficient and economical operation of government.
§ 502. Definitions.
(4) “Electronic record” means a public record that is stored, generated, received or communicated by electronic means for use by, or storage in, an information system or for transmission from one information system to another.
(8) “Public record” means any document, book, photographic image, electronic data recording, paper, sound recording or other material regardless of physical form or characteristics, including electronic records created or maintained in electronic information systems, made, used, produced, composed, drafted or otherwise compiled or collected or received in connection with the transaction of public business or in any way related to public purposes by any officer or employee of this State or any political subdivision thereof.
The Delaware State Attorney General provides guidance on the Delaware Freedom of Information Act, which clarifies the definition of a "public record" under the Act. According to this document, the Delaware FOIA applies to virtually all types of physical or electronic records created, maintained, or possessed by a public body. Consequently, social media records in Delaware are considered public records under the Act.
B. WHAT ARE PUBLIC RECORDS?
The definition of “public record” under FOIA is very broad. It includes all information contained in or on physical documents (typically paper), as well as information stored in electronic format (such as Word, Excel, etc.) or databases, relating in any way to public business, or in any way of public interest, or in any way related to public purposes. Thus, as a practical matter, FOIA’s concept of “public record” covers, at least initially, almost every conceivable type of physical or electronic record that may be created, maintained or possessed by a public body. The concept of a “public record” under FOIA is not limited to information relating to a particular matter of “public business” that may be up for consideration or discussion during a meeting of a public body. Instead, the definition expressly encompasses any information that may be a matter of “public interest,” or which relates in any way to “public purposes.” These expansive concepts (“public interest” and “public purposes”) are not defined in FOIA and have not been explained or refined by this Office or the courts.
The Delaware Department of Technology and Information has a social media policy that emphasizes the agency’s dedication to government transparency. However, the policy does not explicitly mention that social media records in Delaware are considered public records. This incomplete policy may leave the agency vulnerable to FOIA lawsuits and other legal issues.
Social Media are terms that describe Internet-based technology communication tools with a focus on immediacy, interactivity, user participation and information sharing in multiple ways. Just as email and static websites were new communication venues in the previous decade, Social Media today refers to venues such as blogs, video/photo posting sites, social networks, forums and online customer support chat sites. Social Media tools help citizens interact with their government in the individual’s preferred method and time schedule and fosters a culture of greater transparency.
Provide guidelines to State Organizations and employees to use existing and future Social Media technologies to provide information and interact with customers in Social Media venues in the performance of state business, within the framework deemed appropriate by State Organization authorities. Provide guidelines for conduct by State Employees who will use Social Media and Social Media venues to engage with customers on behalf of the State of Delaware.
State Employees and State Organizations will act and conduct themselves according to the highest possible ethical standards. A summary of the key points of ethical Social Media conduct are reproduced below:
i. Customer protection and respect are paramount.
ii. We will use every effort to keep our interactions factual and accurate.
iii. We will strive for transparency and openness in our interactions and will never seek to “spin” information for our benefit.
iv. We will provide links to credible sources of information to support our interactions, when possible.
v. We will publicly correct any information we have communicated that is later found to be in error.
vi. We are honest about our relationship, opinions, and identity.
vii. We respect the rules of the venue.
viii. We protect privacy and permissions.
ix. In cases where we moderate interactions, customer opinion is respected and accepted regardless of whether it is positive or negative, provided customer opinion is “on topic” and not offensive, denigrating, or completely out of context.
Confidentiality vs. Undue Caution:
i. Confidentiality: State Employees and State Organizations must protect all State of Delaware information that is considered to be non-public in nature, per State Organization and State policies pertaining to information classification and disclosure.
ii. Undue Caution: When using Social Media, exercising undue caution about the release of public information is discouraged. To be as transparent as possible, as much information as can be communicated—without disclosing information of a specifically non-public nature—should be disclosed.