Social Media Pitfalls for Municipalities: Addressing First Amendment, Document Retention, Employment Issues and More Drafting Policies for Local Government Officials and Employees on Using Twitter, Facebook and Blogs Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. THURSDAY, JANUARY 23, 2014 Presenting a live 90-minute webinar with interactive Q&A Alan J. Bojorquez, Principal, Bojorquez Law Firm, Austin, Texas Brian J. Lamoureux, Partner, Pannone Lopes Devereaux & West, Providence, R.I.
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Social Media Pitfalls for Municipalities: Addressing First Amendment, Document Retention, Employment Issues and More Drafting Policies for Local Government Officials and Employees on Using Twitter, Facebook and Blogs
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
THURSDAY, JANUARY 23, 2014
Presenting a live 90-minute webinar with interactive Q&A
Alan J. Bojorquez, Principal, Bojorquez Law Firm, Austin, Texas
Brian J. Lamoureux, Partner, Pannone Lopes Devereaux & West, Providence, R.I.
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REQUESTS FOR PRODUCTION IN THE FACEBOOK ERA – CASELAW
Request for Production appropriate means of discovery. o Mackelprang v. Fid. Nat. Title Agency of Nevada, Inc., 2:06-CV-00788-JCM, 2007 WL 119149 (D. Nev.
Jan. 9, 2007) (“The proper method for obtaining such information . . . is to serve upon Plaintiff properly limited requests for production of relevant email communications. Nothing in this Order prevents Defendants from serving such discovery requests on Plaintiff to produce her Myspace.com private messages that contain information regarding her sexual harassment allegations in this lawsuit or which discuss her alleged emotional distress and the cause(s) thereof.”)
Relevance as a necessary predicate for discovery. o Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012) (defendant’s request for
plaintiff to sign authorizations to access plaintiff’s Facebook account denied where plaintiff’s public Facebook page did not tend to show that information on her private Facebook page would be relevant to disputing her claim of disability; plaintiff’s claims were not inconsistent with public photographs of her holding a small dog and standing up at a party).
Relevance as a limitation on the scope of discovery. o Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 569 (C.D. Cal. 2012) (defendant, plaintiff’s former
employer, moved to compel production of plaintiff’s information from social networking sites; motion granted in part with respect to information specifically related to plaintiff’s former employment or the instant lawsuit).
o E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (in emotional distress case, court generally limited discovery of social media information to content relating to emotional and mental states or events that may trigger such states). See also Robinson v. Jones Lang LaSalle Americas, Inc., 3:12-CV-00127-PK, 2012 WL 3763545 (D. Or. Aug. 29, 2012).
Methods of discovery. o FACEBOOK’S “DOWNLOAD YOUR INFORMATION” BUTTON. In re White Tail Oilfield Services, L.L.C.,
CIV.A. 11-0009, 2012 WL 4857777 (E.D. La. Oct. 11, 2012) (court ordered defendant to produce information from his Facebook page following a Rule 34 Request for Production; plaintiff’s request explicitly instructed defendant on the use of Facebook’s “Download Your Information” button).
Analogous Requests for Production
o TEXT MESSAGES. Mintz v. Mark Bartelstein & Associates, Inc., CV 12-02554 SVW SSX, 2012 WL 3553351 (C.D.
Cal. Aug. 14, 2012) (“[D]ocuments reflecting the content of Plaintiff's text messages are within his “control” because he has “the legal right to obtain [these] documents on demand” from AT & T. Because Plaintiff is the “originator” of his text messages, he may request copies of these messages from AT & T consistent with the [Stored Communications Act].”).
Flagg v. City of Detroit, 252 F.R.D. 346, 367 (E.D.Mich.2008) (“[T]he archived text messages under consideration here fit comfortably within the scope of the materials that a party may request under Rule 34 . . . the Court readily concludes that [a defendant] has ‘control’ over the text messages preserved by [a third party service provider] pursuant to its contractual relationship with the [defendant].”) (emphasis added).
o EMAILS. Bower v. Bower, CIV.A. 10-10405-NG, 2011 WL 1326643 (D. Mass. Apr. 5, 2011) (“[I]f [the defendant] authorized the disclosure of her emails, Yahoo! and Google would comply with her request. There also is case law support for a party to proceed by way of a Rule 34 document request to require an opposing party to obtain its own emails from an electronic service provider . . . The parties do not seem to dispute that this court could order [plaintiff] to consent to the production of the emails since they are under her control although maintained by the service provider.”) (emphasis added).
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REQUESTS FOR PRODUCTION IN THE FACEBOOK ERA – FURTHER READING
Christie Strange, “SOS for SNS: How to Navigate the Sea of Social Media Discovery,” 54 No. 9 DRI FOR DEF. 25 (September 2012) (reviewing recent case law and providing guidance to litigators)
o Limitations on the scope of discovery. “Despite the ease and pace at which people exchange information online, courts hesitate to grant unfettered access to all of a plaintiff's social networking account information without first establishing the necessary factual predicate. Simply stated, filing a lawsuit does not authorize an online fishing expedition into all areas of a plaintiff's social networking account merely because you hope to secure potentially relevant information.”
Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Florida Cases, Trial Advoc. Q., Spring 2012 (reviewing recent case law in Florida, listing common objections to discovery requests regarding social networking sites, and recommending language for Requests for Production)
o Reference to methods of discovery. “To overcome objections that downloading or printing Facebook content is cumbersome, include in your discovery request a reference to Facebook's (simple) instructions for downloading all account content.”
o Common objections. “Plaintiffs generally object to social media discovery on the basis of relevance, privilege, and the Stored Communications Act.”
Relevance. “Courts across the county have generally found that Facebook and other social media website postings are relevant to actions where a party’s physical condition is at issue. Social media accounts have also been found relevant to jurisdictional issues.”
Privilege. “Objections based on privacy, confidentiality or privilege are another common line of attack on social media discovery, but these objections have been uniformly rejected by courts addressing the issue. Long-standing principles governing the right to privacy support this conclusion.”
Stored Communications Act (SCA). “[T]he SCA is not an impediment to discovery from an individual plaintiff. The SCA does not apply to individuals, only to internet service providers and services which store electronic communications. An individual producing his account information to opposing counsel or printouts of his a social medial account does not implicate the SCA.”
Steven S. Gensler, Special Rules for Social Media Discovery?, 65 Ark. L. Rev. 7, 26-28, 38 (2012) (discussing the appropriate recipient of a discovery request as the individual user of a social networking site because of her undisputed control over the content of her page)
o Request for Production appropriate means of discovery. “[I]f you want to take discovery of a party’s social-media content, the proper process is to serve a Rule 34 request on that party asking the party to produce the responsive materials. The user then must take reasonable steps to obtain whatever information exists--in whatever format it now exists--from the social-media service.”
o Analogous Requests for Production. “An interesting parallel exists in the caselaw governing medical-records releases. Most courts that have addressed the issue have held that they do not have any power under Rule 34 to compel a party to sign a release so that the requesting party may obtain direct access of the records from the medical provider.”
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SAMPLE REQUESTS FOR PRODUCTION: SOCIAL MEDIA INFORMATION
All electronic or other communications, correspondence, memos, messages, e-mail, notes, reports, or other written or electronic or social networking communications concerning [relevant event] or that pertain to plaintiff and/or plaintiff's activities during the period [date] to [date].1
All electronic or other communications, including all postings to any and all social networking services,
concerning [relevant event] or that pertain to plaintiff and plaintiff's activities during the period [date] to [date].2
An electronic copy of Plaintiff’s complete Facebook history, including any and all profile information,
postings, pictures, and data available pursuant to Facebook’s “Download Your Own Information” feature.3
An electronic copy of any social media sites [used by Plaintiff] including but not limited to all updates, changes, or modifications of Plaintiff’s profile, any photographs or videos posted by Plaintiff or anyone on Plaintiff’s behalf, all status updates, messages, wall comments, causes joined, groups joined, quizzes taken, activity streams, blog entries, details, blurbs, comments, and applications for the period from [date] to the present. Please provide an electronic copy of this information, or a hard copy to the extent an electronic copy is not available.4
An electronic copy of documents and media reflecting all online accounts, profiles, postings, messages
(including forwards, replies, tweets, retweets, wall posts and comments, status updates, and blog entries or comments), video, pictures, and other online or digital communications that (1) relate to the allegations in dispute; (2) reflect, demonstrate, refer to, or relate to any mental status or injury relating to the dispute or otherwise; or (3) reflect or relate to events of sufficient significance to produce a significant emotional response or mental state.5
All social networking communications between Plaintiff and any current or former employees [of
defendant], or which in any way refer [or] pertain to her employment [with defendant] or this lawsuit.6
1 Monique C.M. Leahy, Pretrial Involving Facebook, MySpace, LinkedIn, Twitter, and Other Social Networking Tools, 121 AM. JUR. PROOF OF FACTS 3d 1 (Last updated February 2013). 2 Id. 3 Holter v. Wells Fargo & Co., 281 F.R.D. 340, 343 (D. Minn. 2011) 4 Id. 5 Christopher E. Parker, Travis B. Swearingen, "Tweet" Me Your Status: Social Media in Discovery and at Trial, Fed. Law., January/February 2012, at 34, 36 6 Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 569 (C.D. Cal. 2012).
Sample Only Educational Use
Matrix City Social Media Policy
Given the multitude of concerns (legal, political, and ethical) raised by social networking (Facebook, MySpace, Twitter, etc.) this policy (effective immediately) establishes prudent and acceptable practices regarding Matrix City officials and employees (personnel) use of the internet. While Matrix City encourages its personnel to enjoy and make good use of their off-duty time, certain activities on the part of its personnel may become a problem if they have the effect of impairing the work of any official or employee; harassing, demeaning, or creating a hostile working environment; disrupting the smooth and orderly flow of work; or harming the goodwill and reputation of the City among its citizens or in the community. For these reasons, the City reminds its personnel that the following guidelines apply in their use of social media, both on and off
duty.
Under this policy, the City disavows, and is not responsible for any sites, posts, opinions, or content not coordinated through and approved by the City Manager or Mayor. If City personnel posts data purporting to be on behalf of the City while using a social media site without the approval of the City Manager, the City is not responsible for that content, such content is not to be construed as reflecting the views or opinions of the Mayor, City Council or City management, and the City is not responsible for archiving such content in accordance with the records retention schedule, or providing copies in accordance with the Texas Public Information Act (PIA). Furthermore, the absence of explicit reference to a particular site does not limit the extent of the application of this policy. If you are uncertain, consult your supervisor or manager before proceeding. General Guidelines 1. While on duty, the use of City equipment or internet service by personnel must be limited to
work related tasks. Social media activities should never interfere with work commitments. 2. No personnel may post online content as a representative of the City, or on the City’s behalf
without the City Manager’s or Mayor’s approval. 3. If discussing City related issues, but not posting online content as an approved representative
of the City or on the City’s behalf, all personnel must make it clear that they are speaking for themselves, and not on behalf of the City by displaying a disclaimer that states: “This is my own opinion and not necessarily the opinion or position held by the City or City Council.”
Guidelines for Official City Social Media Sites and Content 1. All City-sanctioned social media sites shall be maintained by the City Manager. Any content
to be posted on City-sanctioned social media sites must meet the approval of the City Manager or Mayor before it is posted.
2. All personnel that engage in social media activities on the City’s behalf and all City-
sanctioned social media sites shall adhere to applicable federal, state and local laws, regulations and policies, including the Texas Public Information Act and the records retention schedule. All content must be managed, stored and retrieved to comply with these laws.
3. All online content posted as representative of the City, or on the City’s behalf shall clearly
indicate that it is subject to records retention and public disclosure. All City- sanctioned social media sites shall clearly indicate that any articles and any other content posted or submitted for posting are subject to records retention and public disclosure.
4. Any content posted as representative of the City, or content posted to a City- sanctioned
social media site containing any of the following shall not be allowed: a. Comments not topically related to the particular site or blog article being commented
upon; b. Profane language or content; c. Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed,
color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability or sexual orientation;
d. Sexual content or links to sexual content; e. Conduct or encouragement of illegal activity; f. Information that may tend to compromise the safety or security of the public or public
systems; or g. Content that violates a legal ownership interest of any other party.
5. Content submitted for posting on a City- sanctioned social media site that is deemed
unsuitable for posting by the City Manager because it violates criteria in the preceding item (Item 4, above) of this Policy, shall be retained pursuant to the records retention schedule along with a description of the reason the specific content is deemed unsuitable for posting.
6. Any hyperlinks posted on a City sanctioned social media site shall be accompanied by a
disclaimer which states: “The City guarantees neither the authenticity, accuracy, appropriateness nor security of the link, website, or content linked thereto.”
All personnel are to sign copies of this policy and be trained in its meaning.
Personnel found in violation of this policy may be subject to disciplinary action, up to and
including termination of employment.
45
OPEN GOVERNMENT AND THE NET: BRINGING
SOCIAL MEDIA INTO THE LIGHT*
by Alan J. Bojorquez**
and Damien Shores***
I. INTRODUCTION .................................................................................... 46 A. Social Media ............................................................................... 47 B. Facebook ..................................................................................... 47 C. LinkedIn ...................................................................................... 47 D. MySpace ...................................................................................... 48 E. Blogs ........................................................................................... 48 F. Twitter ......................................................................................... 49 G. Potential for Problems ................................................................ 49
II. RECORDS RETENTION ......................................................................... 50 III. TEXAS PUBLIC INFORMATION ACT ..................................................... 52
A. Who Is Subject to the Act? .......................................................... 53 B. E-mail ......................................................................................... 53 C. Personal v. Official ..................................................................... 54 D. Requests ...................................................................................... 56 E. Selective Disclosure .................................................................... 57 F. Exempt Information .................................................................... 57 G. Confidential Information ............................................................ 58 H. Violations .................................................................................... 58
IV. TEXAS OPEN MEETINGS ACT .............................................................. 59 A. Meetings ...................................................................................... 59 B. Action without Meeting ............................................................... 60 C. Quorum & Subcommittees .......................................................... 62 D. Conversations of Less Than a Quorum ....................................... 63 E. Enforcement ................................................................................ 63 F. Conspiracy .................................................................................. 63 G. Closed Meeting without Authorized Exception ........................... 64 H. Closed Meeting without Minutes ................................................. 64 I. Ignorance Is No Excuse .............................................................. 64 J. Affirmative Defense ..................................................................... 64 K. Actions are Voidable & Other Penalties ..................................... 65
* This paper and any accompanying presentations are intended for general educational purposes only
and do not constitute legal advice.
** Alan J. Bojorquez is a lawyer whose practice focuses exclusively on serving municipalities. He
graduated from Texas Tech University with his B.A. in 1990, and his J.D. and M.B.A. in 1996. Mr.
Bojorquez is the principal at the Bojorquez Law Firm, PLLC, in Austin, Texas.
*** Damien Shores is a third year law student at Saint Mary‘s University. He received his B.A. in 2004.
He currently works at the Bojorquez Law Firm, PLLC, in Austin, Texas.
46 TEXAS TECH ADMINISTRATIVE LAW JOURNAL [Vol. 11:45
V. POLICY SUGGESTIONS ......................................................................... 65 A. Be Mindful of Postings ................................................................ 66 B. Privacy ........................................................................................ 67 C. Telecommuting ............................................................................ 68 D. Online Harassment ..................................................................... 68
VI. CONCLUSION ....................................................................................... 69
I. INTRODUCTION
Although lawyers themselves may be technologically astute, the laws
with which they labor inevitably lag far behind. The purpose of this article is to
reconcile broad, lumbering statutes designed to achieve open government in
Texas with new, rampant technologies, particularly in the area of ―social
networking‖ and ―social media‖ websites. Government agency managers and
the lawyers who advise them may be surprised to learn the extent the agencies
are legally responsible for what agency workers do online.
Services, such as Facebook, Twitter, MySpace, LinkedIn, Blogger,
YouTube, and others, represent the fastest growing segment of Internet usage.1
Between February 2008 and February 2009, Facebook (the most popular social
networking website) grew 228% to add 65.7 million new users.2 During that
period, Twitter saw a 1,374% increase and now has seven million users.3 The
growing rate of usage presents unique challenges for public entities and the
attorneys who represent them.4
This article navigates the web of social networking sites and provides
guidance on the application of Texas‘s open government laws (primarily the
Public Information Act, Open Meetings Act, and Records Retention Act).5
What is communicated online to or from local government agents is a
legitimate concern for agency managers depending on the content, means of
conveyance, and participants. Even unofficial, non-sanctioned postings by an
agency employee to friends can trigger obligations under the Records Retention
Act, the Public Information Act, and the Open Meetings Act.
The authors of this article clarify the obligations of government agencies
to preserve data created online, provide general public access to that data, and
avoid public decision-making in cyberspace. Finally, we offer policies,
1. The Social Media Guide Website, http://mashable.com/2009/04/20/the-fastest-growing-social-sites/
(last visited Nov. 10, 2009).
2. Texas Workforce Commission, Employee Social Networking: It’s Time to Address the Issue, TEXAS
BUSINESS TODAY, Spring 2009, at 4, available at http://www.twc.state.tx.us/news/tbt/tbt0509.pdf [hereinafter
Texas Workforce Commission].
3. Id.
4. See id.
5. The authors acknowledge that social media websites pose varied legal challenges to government
agencies, such as those involving Employment Law, but this article is limited to mandates and pitfalls of open
government legislation.
2009] OPEN GOVERNMENT AND THE NET 47
practices, and procedures government agencies should consider implementing
to better manage their obligations under Texas‘s sunshine laws.
A. Social Media
Social networking and social media websites represent a shift in how
people discover, read, and share news, information, and content; they are a
fusion of sociology and technology, transforming monologues (one-to-many)
into dialogues (many-to-many), and they are ―the democratization of
information, transforming people from content readers into content
publishers.‖6 The social nature of these websites helps to build online
communities of people who share interests, activities, or both, or people
interested in exploring the interests and activities of others.7 This article uses
the terms social media and social networking interchangeably because most of
the websites have elements of both.
B. Facebook
Facebook is a perfect example of a social media website because it allows
users to put up and share content like photos, videos, notes, blogs, web links,
and news stories, but it is also an excellent example of a social networking site
because users can link to other users, or ―friends,‖ send friends messages, and
keep friends updated on the user‘s status by updating the user‘s profile.8 With
Facebook, a user‘s group of friends or social network is based on his
affiliations, such as the city he lives in, the college he went to, or the place
where he works.9
C. LinkedIn
LinkedIn is a business-oriented social networking website that focuses on
professional networking.10
The purpose of the site is to allow registered users
to connect with other business professionals they know and trust by maintaining
a list of contact details.11
LinkedIn calls the people in the list ―connections.‖12
Users can invite users or nonusers to become a connection.13
A user can use his
connections to form a contact network consisting of his connections, the
6. See DAVE EVANS, SOCIAL MEDIA MARKETING: AN HOUR A DAY 33 (2008).
7. See DOUGLAS DOWNING ET AL., DICTIONARY OF COMPUTER AND INTERNET TERMS 443 (10th ed.
2009) [hereinafter DOWNING ET AL.].
8. See Facebook, Product Overview, http://www.facebook.com/press/product.php (last visited Nov. 6,
2009).
9. See id.
10. See LinkedIn, Learning Center, http://learn.linkedin.com (last visited Nov. 6, 2009).