*How to best usesocial media

in GOVERNMENT

*Working definition of Social Media: A set of web-broadcast technologies that

enable the sharing of content, giving people the ability to emerge from consumers of content to publishers.

* Social Media 101 Here’s a

vintage-style photo

of my doughnut

I like doughnuts

I’m eating a doughnu

t

This is where I eat

doughnuts

Here’s a doughnut recipe

My doughnut-eating experien

ce

My skills include

doughnut eating

Here I am

eating my

doughnut

*Why use social media?

Americans using social media are more engaged

consumers and citizens.

*The Leaders in Social Media

Facebook and Twitter*Governments surveyed have a higher

adoption rate for Twitter

But,*User popularity still heavily favors Facebook

Facebook

Twitter

* June, 2012 13th Quarterly Allstate and National Journal Heartland Monitor Poll

Social media users are more likely than non-users to have:

Volunteered for a community organization:

Participated in a group related to a community issue:

Attended a campaign rally:

Volunteered for a political campaign:

49% 69%Non-users

Users

43% 57%Non-users

Users

22% 32%

23% 15%

Non-users Users

Non-users

Users

*The StatsMore than 2/3 of social media users, and

60% of all Americans, believe the Internet and social media have made it easier for them to be well informed consumers.

A plurality of Americans (47%) and social media users (55%) say these technologies have made them more well-informed and active as citizens in the political sphere.

* Americans are still more likely to trust information when it comes from traditional media sources. In order from most to least positive, Americans place a “great deal” or “some” trust in:

• Public TV and radio (75%)

•Newspapers (71%)

•Cable news (70%)

•Network news (64%)

•Magazines (57%)

• Talk radio (53%)

•Company websites (51%)

•Advertisements (37%)

•Blogs and online forums (34%)

• Social media sites (30%)

*Social Media adoptionCity government adoption level of social media in August 2011

94%

90%

45%

Mobile App 15%

*Social media benefits and dangers

Social media can be used in many different ways to serve many different purposes. Some use of social media can be categorized as private. But, when you represent the public, the line between “personal record” and “public record” becomes a little more blurry.

*How to avoid a social media catastrophe as a government leader

1.Gain a comfortable level of familiarity with the platform itself.

Something as little as not knowing what each button means on a particular social media platform can mean the difference between deleting something inappropriate, and sharing it with the world. There are many tutorials online that can help with this, or just snag any kid between the ages of 12 and 25 and they’ll be able to help.

2.Construct a list of topics to avoid completely.

Making a list for yourself, or your governmental entity, of topics which should be avoided all together while on social media may be beneficial.

*How to avoid a social media catastrophe as a government leader

3. Establish a line between personal and professional.

To keep personal and professional information separate from one another, you may find it helpful to create two different accounts for which ever social media sites you choose to use. This way one account consists of completely work-related topics, and one consists of solely personal topics.

*How to avoid a social media catastrophe as a government leader

4.Triple-check everything you post.

Taking an extra 10-15 seconds to re-read what you are about to post can bring mistakes to light that could otherwise slip and cause a major meltdown. These mistakes may be as little as an error in grammar that creates a false statement, or as big as using an incorrect name in some sort of accusation.

*How to avoid a social media catastrophe as a government leader

*City of Springfield TwitterThe City of Springfield has a

Twitter account so citizens can follow information posted

in live time. All information posted on this

account is public.

*A Facebook post by a government official -to archive or not to archive? shared Truth Is Local's photo.

June 13

We still have not heard whether the Governor has vetoed SB 506 and HB 1326. Thank you for your voices. Please continue if you have not already. Now, with all hope that we have sent our respectful message to the Governor, I have a request.... I'd like to ask those of you who are willing (It's easy for me as i'm not a pretty boy) to replace your timeline photo with the photo attached here. I will leave this as my timeline photo until Aug 5th. I'd love to have your help as a show of Support to VOTE NO ON AMENDMENT 1.... The RIGHT TO FARM (SCAM). Thank you in advance!!!

*The “mostly cloudy” (or is it “partly sunny”?) aspects of the Sunshine Law

*Analysis for any Sunshine Issue

*REMEMBER!! --“It is the policy of this state that meetings, records… actions and deliberations of shall be open to the public… [and the Sunshine Law] shall be liberally construed and exceptions strictly construed.” 610.015 RSMo.

Issue 1: Is this a “meeting of the governmental body”?

Issue 2: Is this a “public record”?

*“Governmental Bodies” subject to Sunshine Law

*The issue of “meetings of governmental bodies” has been rather heavily litigated in Missouri, as such, there is much more guidance on this aspect of Sunshine Law.

*Leading cases on the issue are:• Kansas City Star Co. v. Shields, 771 S.W.2d 101

(Mo. App. 1989)(public body conducting business)

• North Kansas City Hospital Board of Trustees v. St. Luke’s Northland Hospital, 984 S.W.2d 113 (Mo. App. 1998)(analyzing what constitutes quasi-public bodies).

*610.010(5) RSMo.

*“public meeting” is where any “public business is discussed, decided or public policy is formulated”.

*Does not include “informal gathering of members of public body for ministerial or social purposes.”

*Missouri Social Media Guidelineshttp://www.sos.mo.gov/archives/pubs/SocialMedia.pdf

Social Media Policy adopted last November by Missouri Records Commission.

Highlights of Policy:

1. Designate who is responsible for content;

2. Policy should outline ramifications for those who fail to follow policy;

3. Identify who owns the account and content;

4. Limit access;

5. Have a policy about forwarding 3rd party broadcasts;

6. Make sure confidentiality is addressed;

7. Understand copyright issues;

*Guidelines, continued

8. Have a disclaimer on opinions posted on the site;

9. Do not rely on third-party vendors to keep messages or archive. This is the responsibility of the agency with the account;

10. Have plan in place to be able to archive and retrieve information in the event of a system crash, change in user terms by the provider or discontinuance of the media.

*What are “Public Records”?

*“any record whether written or electronically stored retained by or of any public body”. 610.010(6) RSMo.

*Not as heavily litigated in Missouri, especially since advent of newer technology.

*Social media and transitory electronic messaging present unique problems.

*The latest guidance offered by the Missouri Secretary of State dates back to 2001.

*See —http://sos.mo.gov/records/recmgmt/E-MailGuidelines.pdf

*Is It covered?*Cases which have addressed issues of what constitute

public records have focused on the content of the message.

*Location from which message was generated is irrelevant.

Bent v. State, 46 So.3d 1047(Fla.App. 4 Dist.,2010); Easton Area School Dist. v. Baxter, 35 A.3d 1259(Pa.Cmwlth.2012); Schill v. Wisconsin Rapids School Dist., 327 Wis.2d 572, 786 N.W.2d 177 (WI. 2010.)

*The test of determining “public” v. “private” documents involves comparing the nature and purpose of a document with a government official's or agency's activities to determine whether the documents constitute a record of the “performance of official functions that are or should be carried out by public official or employee,” thereby making them public records under Freedom of Information Act, necessarily requires a fact-specific inquiry. Pulaski County v. Arkansas Democrat-Gazette, Inc., 260 S.W.3d 718 (Ar. 2007).

*Covered?, Contd.

*However, where a public employee was disciplined for using public computer for improper personal use, the e-mails forming the basis for discipline were deemed “public” due to the connection they had to the disciplinary action. State ex rel. Bowman v. Jackson City School District, 2011 WL 1770890 (Ct. App. Ohio 2011)

*Mixed use cases*If a communications medium contains both public

and private communications, only the public portion of the medium is subject to Sunshine Law. Wick Communications Co. v. Montrose County Bd. Of Commissioners, 81 P. 3d 360 (Co. 2003).

*With respect to e-mail messages, the inclusion of an elected official’s correspondence in an Open Records Law does not eliminate the privacy protection inherent in the “public records” definition. Denver Publishing Co. v. Arapahoe County Bd. of Commissioners, 121 P. 3d 190 (Co. 2005)(sexually explicit texts and e-mails between elected official and employee not public records because they did not address the performance of public functions or receipt or expenditure of public funds.)

*Texts, Facebook and IM*The latest battle over electronic

documents is being waged in D.C.

*http://www.usatoday.com/story/news/politics/2014/07/09/irs-lois-lerner-emails-be-careful-what-we-say/12424787/

*Riley v. City of Prescott, AZ, 2014 WL 641632 (D.C. AZ., Feb. 19, 2014)(Sanctions for failing to produce emails between Mayor and Assistant).

*Even if I.T. Department can retrieve for you, still responsibility of recipient and/or sender to locate and produce records.

*Remember to archive?

*All government entities are required to follow Chapter 109 RSMo.

*109.270 RSMo. requires that all records that come into the custody of, or made by, a local official in the course of their public duties shall not be mutilated, destroyed or transferred except as permitted by state law RSMo. 109.310.

*Is it going to be litigated?

*If there is any chance that a public entity or official is going to be involved in litigation concerning the entity’s actions, then there are additional requirements imposed by court rules.

*The duty to preserve arises when a party knows, or should know, that certain evidence is relevant to pending or future litigation.

*RULE 26

*Usually, a city or town will take actions that result in someone claiming that the person’s federal constitutional rights have been violated.

*Examples include zoning, condemnation, inverse condemnation, right to assemble, free speech, discrimination, privacy and cruel and unusual punishment (excessive force). These claims are usually brought in federal court under 28 U.S.C. 1983.

*RULE 26

*If you find yourself in federal court, the biggest challenge you will face (aside from the lawsuit itself) is the disclosure requirements imposed by federal courts. NOTE: The disclosures are mandatory.

*If sued each party to the lawsuit must disclose, at a minimum, within 120 days (roughly) of being served the initial complaint, the following:

*A copy of any and all documents or electronically stored information that a party MAY use to support claims or defenses or damages.

*Expert witness reports.

*How does this affect me?

* Tying together all of the record retention requirements required by the Secretary of State, coupled with Sunshine Law requirements, Rule 26 is the actual hammer a city should most fear.

* Once a party reasonably anticipates litigation, it has duty to suspend, as to documents that may be relevant to anticipated litigation, any routine document purging system that might be in effect, and the failure to do so constitutes spoliation. Such a party has a duty to put in place a litigation hold to ensure the preservation of relevant documents; the failure to do this also constitutes spoliation. A document retention policy adopted or utilized to justify the destruction of relevant evidence is not a valid document retention policy and implementing such a policy in advance of reasonably foreseeable litigation would not be proper and could constitute spoliation. In order to determine whether sanctions are warranted when documents have been destroyed due to a company's retention policy prior to litigation, the court must consider:

* (1) whether the retention policy is reasonable considering the facts and circumstances surrounding those documents;

(2) whether lawsuits or complaints have been filed frequently concerning the type of records at issue; and

(3) whether the document retention policy was instituted in bad faith.

*So what?

* Remember, any policy document (as defined by the Secretary of State) is permanent.

* A "record" is defined as any "document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business" (109.210(5) RSMo). This definition includes those records created, used and maintained in electronic form.

*The Value of Local Government Records

*Some records, because of their enduring administrative, fiscal, legal or historical value, should be permanently retained.

*Local government offices may retain any of their records beyond the retention periods set by the schedule, as they deem necessary. The schedule establishes only a minimum period of retention. Before retaining a record longer than the minimum time required, however, the office should be certain that it has good reason to do so. Unnecessary retention of records can be expensive in space and filing equipment and may expose the office to costly litigation and discovery requirements.

*Mountains of Paper!*Courts and commentators recognize that

electronically stored information raises different issues from conventional discovery of paper records. “The most significant difference between traditional and electronic discovery (also called e-discovery) is the sheer quantity of electronically stored information and the difficulty of deleting it. Because of the vast storage capacity of electronic systems, more records may be saved, and retrieving those records can be expensive when new technology renders the prior system obsolete. To place the volume into perspective, a single corporation could possess more than 10,000 backup tapes of potentially relevant information

*Springfield’s Experience

In the last year three Sunshine requests generated the following:

*22,000 e-mails, of which only 100 were separate, distinct messages.

*65,000 e-mails, documents, and text messages.

*27,000 e-mails and documents.

*NOTE: ALL HAD TO BE REVIEWED BY ME!

*Spoliation*Counsel is advised that the key elements in

avoiding spoliation issues are making sure that clients have a clearly established record retention policy and to make sure to institute a litigation hold with the client or issue preservation notices to parties with relevant information as soon as litigation appears likely.

*Instigating a litigation hold as soon as litigation appears likely is especially important today where one study of sanctions for e-discovery noted, “In the 230 cases in which sanctions were awarded, the most common misconduct was failure to preserve ESI, which was the sole basis for sanctions in ninety cases.

* AmJur Proof of Facts 3d 1

*Chapter 109 RSMo.

*No records can be destroyed until they meet the minimum retention period listed in the Secretary of State’s manual.

*The disposition of records should be recorded in a document such as the minutes of the city council or other legally constituted authority that has permanent record status. The record should include the description and quantity of each record series disposed of, manner of destruction, inclusive dates covered and the date on which destruction was accomplished.

*109 Exception

*When records, open or confidential, have been destroyed by decay, vermin, fire, water or other means making their remains illegible, the custodian of records may dispose of the remains after verification and documentation by the Local Records Program, Office of the Secretary of State.

*CAVEAT!!!!!

*It should be kept in mind, however, that a record kept beyond its listed retention must be made available for inspection upon request