Under the Massachusetts Public Records Law (G.L.c.4, § 7(26)), public records include all writings produced by public agencies, regardless of their physical form, including electronic records. Effective January 1, 2017, an update to the law mandates that records officers must permit the inspection or provide a copy of requested public records within 10 business days of receiving the request.
“Public records” shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose
The Secretary of the Commonwealth discusses social media records in Massachusetts in the Electronic Records Guidelines. The guidelines specifically note that social media content is subject to electronic records requirements and advise public entities that the content is stored on servers that are not under their jurisdiction. Consequently, entities cannot depend on social media service providers to retain records in a way that fulfills the requirements of the Massachusetts Public Records Law.
Social Media Records
Public entities that use social media should be aware that social media sites contain communications sent to or received by state employees that are subject the same electronic records requirements discussed throughout these Guidelines.
Note: Public entities that use social media should be aware that most social media sites are hosted by third party providers. Consequently, the physical hardware and software that enable the social media site are located at, and under the control of, an entity other than the Commonwealth. Therefore, public entities have limited control over the functionality or business practices offered by such sites and the legal terms to which they are subject. These terms may impact adequacy of accessibility for people with disabilities, documentation, recordkeeping requirements, records management responsibilities, and records disposition. Public entities should be aware that the social media provider is unlikely to change features and functionality that do not meet all of the public entity’s recordkeeping and records management obligations.
Therefore, public entities need to ensure procedures are implemented to allow for:
(7) Review of third party social media service provider’s terms of service for its records retention practices.
Note: While third party social media providers will most likely save the public entity’s content for some period of time, they generally will not save it indefinitely.
(8) Retention of a copy of the social media content in accordance with the Statewide Records Retention Schedule.
Note: To the extent that the social media provider’s policies are inconsistent with the Statewide Records Retention Schedule, the public entity is obligated to take affirmative steps to retain copies of social media posts.
The Guide to the Massachusetts Public Records Law contains broader guidance on electronic records, as well as responses to commonly asked questions. See the guide below.
Does the Public Records Law apply to email and other computer records?
The Public Records Law applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.
When drafting the Public Records Law the legislature did not envision the impact computers would have on the government’s ability to collect, store, compile and disseminate information. The legal principles embodied in the Public Records Law, however, may be readily transposed into legal principles governing access to information maintained in an automated system. The statutory definition of “public records” does not distinguish between paper records and electronically stored information. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.”
The government of Massachusetts upholds transparency and accountability in its operations. This principle involves preserving social media records and notifying citizens that their comments and responses may be retained as public government records. The state's social media policy for the public emphasizes that information posted on these platforms and feedback received from citizens qualify as public records under the law.
Mass.gov® Social Media Policy
Please note that Records Retention Law of the Commonwealth requires the Mass.gov team to preserve records created or received by a state employee. Pursuant to this retention requirement comments posted or messages received via an official state agency page on a third-party web-site (such as an official agency profile on a social network) will be treated as state governmental records and may be permanently archived.