All towns are familiar with open government laws requiring them to maintain documents and share them with the public on request, but few are aware that the laws also pertain to most aspects of the digital world. That means public employees, elected officials and committee members have to keep records of their email and social media activity that pertains to municipal business.
Last week, the village of Saugerties became one of the first governments in the county to adopt a policy aimed at guaranteeing transparency in digital communication.
“This is something that municipalities will be seeing with more frequency,” said Bob Freeman, executive director of the New York Department of State Committee on Open Government. “Municipalities need to treat everything that officials do over social media like paper documents and save them. If an official does anything on email that has to do with municipal operations, they should send a copy to the municipal clerk for their records.”
What if the post or email no longer exists? Freeman said in that case, the employee or official would have to sign a notarized affidavit explaining what happened, and if it’s found to be inaccurate, that person could face perjury charges.
In practice, this is much more likely with email, a two-way system that would require two deletions to be truly gone. If someone were to delete a social media post, and no one recorded an image of their computer screen while it was live, it’s hard to see how it could be proven to have existed.
Village trustees and employees all have village email addresses they’re supposed to use when discussing village business, and those records are stored automatically on the village server. The only way a deleted email situation could come up would be if someone was using a personal email account.
The impetus for the new policy came from village clerk Mary Frank, who learned about new requirements during a seminar six months ago held by the state archives, which helps municipalities determine which records should be saved and how to do so.
Trustee Vince Buono, who helped draft the village document, said the village’s insurance representative also advised it to adopt such a policy.
At this point, the village seems to be out in front on the issue.
“When we went to craft this policy,” Buono said, “I looked around at other municipalities and nobody has it.”
For example, while village trustees have village email addresses, town councilpersons use their personal email addresses. Those can still be FOILed, but it’s not as easy as having a guaranteed backup like the village server. It’s analogous to the recordkeeping requirements that keep the town and village hall well stocked with file cabinets, but it still hasn’t quite caught on yet.
“It’s a slow process getting municipalities to understand that these are records that need to be saved,” said state archivist Christine Ward. “Electronic records are incredibly important … and all municipalities should be aware of this. It’s all public information.”
Municipalities need to have a handle on how to deal with social media and have a policy in place, Buono explained.
“Our officials and employees have to be careful what they comment on and our policy makes that clear,” he said.
The policy also gives village officials the right to review all emails and posts at any time, Buono added.
“We can’t be doing public business on email or voting on issues,” he said.
Saugerties policy reads in part, “The Village of Saugerties recognizes that traditional communication methods are now supplemented or replaced by use of various Social Media Technologies,” and “using Social Media Technologies to share news about municipal events, disseminate emergency information, and promote work being done by staff and community groups, is an effective, low-cost way to inform and interact with our community.”
Included in this policy is use of the Internet forums, blogs, streaming videos, social networks, podcasts, texting, email, website applications and social sharing sites.
It reads, “Officials should refrain from using social media sites to discuss business or take action in violation of New York State’s Open Meeting Law. Officials should also refrain from commenting on subject matter related to quasi-judicial matters within their purview or jurisdiction.”
Should officials or employees violate the village policy on their private email or home computer or mobile device, Frank half-jokingly said, “Then we just call the NSA and ask for a copy.”