In New York, social media records are regulated by the Freedom of Information Law ("FOIL"), which mandates government agencies to be accountable and responsive to the public. The law defines records as any information that an agency or state legislature holds, keeps, files, produces, or reproduces in any physical form.
“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.”
“3. ‘Agency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”
“4. ‘Record’ means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
The New York State Archives issued guidance on managing social media records in New York. According to the guidance, it is crucial for government entities to identify and apply the appropriate retention periods to social media records. The report provides information on retention requirements and offers additional resources that outline best practices for managing social media records.
Identifying and applying the appropriate retention periods to social media records is a critical step in managing them.
Meeting Retention Requirements for Social Media Records
Governments also need to ensure that they are capturing the information that they actually need to manage. For example, Twitter has a built-in tool to download user accounts, but only the user account information and tweets are captured. The interaction with other users is lost… Another option may be to utilize a cloud-based social media archiving tool that will capture your social media records and store them on their own servers.
Governments also need to examine how frequently governments will need to extract or capture their social media records. There are a number of variables to consider including:
The NYSBA has provided ethical guidelines for attorneys using social media, recognizing the need to address specific ethical considerations posed by these platforms. To address social media records in New York State, they recommend that attorneys who use social media to communicate with clients related to legal representation must retain records of those communications, similar to paper records.
Guideline No. 3.C: Retention of Social Media Communications with Clients
“If an attorney utilizes social media to communicate with a client relating to legal representation, the attorney should retain records of those communications, just as she would if the communications were memorialized on paper.”
“The lawyer must take affirmative steps to preserve those emails and social media communications, such as chats and instant messages, which the lawyer believes need to be saved. However, due to the ephemeral nature of social media communications, “saving” such communications in electronic form may pose technical issues, especially where, under certain circumstances, the entire social media communication may not be saved, may be deleted automatically or after a period of time, or may be deleted by the counterparty to the communication without the knowledge of the lawyer. Casual communications may be deleted without impacting ethical rules.”
The State of New York has implemented a social media policy to facilitate communication between the government and the public through social media channels. The policy acknowledges that social media posts and communications are considered public records in New York and may be treated as public information. This policy can aid New York agencies in complying with the requirements of the New York Freedom of Information Law.
“New York State engages New Yorkers through many digital outlets, including NY.gov and Governor.NY.gov. Communicating with the State through social media enables you to contact us in a direct and meaningful way…”
“You agree that any information you post on a New York State social media site is irrevocably, permanently licensed to New York State and may be treated by the State as public information subject to disclosure to third parties. If a copyright is indicated on a video, photo, graphic or other material, permission to copy the material must be obtained from the original source of the material before posting.”