The Freedom of Information Act (FOIA) was established by Congress in 1966 with the aim of ensuring public access to records generated by Federal agencies and the government. Over the past 50 years, the law has been consistently improved to align with changes in the way government communicates and operates, including how records are created. In 2011, President Obama issued a memorandum that launched an initiative to modernize records management policies and practices, to better accommodate social media and other 21st century records.
Section 1. Purpose. This memorandum begins an executive branch wide effort to reform records management policies and practices. Improving records management will improve performance and promote openness and accountability by better documenting agency actions and decisions.
(b) Within 120 days of the date of this memorandum, each agency head shall submit a report to the Archivist and the Director of the Office of Management and Budget (OMB) that:
(i) describes the agency’s current plans for improving or maintaining its records management program, particularly with respect to managing electronic records, including email and social media, deploying cloud based services or storage solutions, and meeting other records challenges;
The National Archives and Records Administration (NARA) has released guidelines regarding the treatment of social media as public records. As per the guidelines, records of social media activity by Federal agencies may fall under the purview of the Freedom of Information Act. NARA's bulletin states that social media provides a platform for individuals to engage in a range of activities such as collaboration, content creation, editing, commenting, sharing, and organizing, which can potentially result in the creation of records that are subject to Federal regulations.
Agencies and departments are encouraged to use Social Media technologies to engage their customers and employees where appropriate. Many state entities, including the Governor’s office, have used Social Media communication with great success
October 25, 2013
TO: Heads of Federal Agencies
SUBJECT: Guidance on managing social media records
EXPIRATION DATE: October 31, 2016
3. What are social media records?
Social media allows individuals to collaborate, create, organize, edit, comment on, combine, and share content, likely resulting in the creation of Federal records. The Federal Records Act (44 U.S.C. 3301) defines Federal records as any material that is recorded, made or received in the course of Federal business, regardless of its form or characteristics, and is worthy of preservation. Social media content that meets this definition must be managed according to the applicable laws and regulations.
The statute and its implementing regulations place responsibility with each agency to determine what Federal records they create or receive. Refer to 36 CFR, Chapter XII, Subchapter B, for guidance on how agencies should apply the statutory definition of Federal records.
The following non-exhaustive list of questions will help agencies determine record status of social media content:
If the answers to any of the above questions are yes, then the content is likely to be a Federal record. Also, social media content may be a Federal record when the use of social media provides added functionality, such as enhanced searchability, opportunities for public comment, or other collaboration. A complete Federal record must have content, context, and structure along with associated metadata (e.g., author, date of creation). The complete record must be maintained to ensure reliability and authenticity.
This piece discusses the management of Federal social media records with regards to the Freedom of Information Act (FOIA), citing the Department of the Interior and the Department of Energy as two examples. The Department of the Interior has a well-defined social media policy that acknowledges the status of social media as public records under FOIA. Meanwhile, the Department of Energy recognized the importance of treating social media as records as early as 2010, adhering to the principle that "a record is a record is a record," irrespective of the format.
View DOI's Social Media Policy View and DOE's infographic on social media records
Records Management, Retention, and Archiving
When using electronic media, whether it is a blog, a Web site, a wiki, e-mail, or any other type of electronic communication, the regulations that govern proper management and archival of records still apply. DOI users, working with the Records Management Officer, determine the most appropriate methods to capture and retain records on both government servers and technologies hosted on non-Federal hosts. The National Archives and Records Administration offers resources and guidance to agencies to ensure proper records management.
DOI and bureaus will need to work with the Records Management Officers to determine the proper records maintenance schedules and dispositions for content posted on third-party Web sites.