kevin s. hennessy managing shareholder lewis longman & walker, p. a

See Things Differently

Kevin S. Hennessy Managing Shareholder

Lewis Longman & Walker, P. A.

“The Government in Your FaceBook: The Risks and Rewards of Local Government

Social Networking”Florida League of Cities’ 85th Annual Conference

Orlando, FloridaAugust 11-12, 2011


SOCIAL NETWORK: • Community where users create profiles and interact.

• Community can be general or based on some common interest or purpose.

• Social networking – fad or lifestyle.


“THE GOVERNMENT SOCIAL MEDIA DIRECTORY” • Directory Of Government Twitter Account Listing Over 1000

State And Local Governments.

“The Most Complete Directory of Any Nation’s

Government Agencies on Twitter”

• Follows almost 4,000 people around the world in, or covering government.


PLAY IT SAFE OR EMBRACE THE CHALLENGES OF THE ON-LINE WORLD

Alachua CountyCity Of

Miami

Panama City Beach

St. Petersburg


REDONDO BEACH DOES ABOUT FACE ON FACEBOOK

By Kristin S. Agostoni Staff Writer Posted: 08/22/2010 10:17:31 PM PDTUpdated: 08/22/2010 10:21:00 PM PDT

“If you're following Redondo Beach on Facebook, this probably isn't

news you'll like. The city is giving up its page, or at least putting it on

hiatus. Until local leaders are satisfied that the use of the popular

social networking website won't leave the city open to legal challenges

or violations of open meetings and public records laws, they've ended

a pilot project that put Redondo Beach on Facebook about a year

ago.”


CITY BAN ON FACEBOOK

About Face: Leading City

Firms Such As Dresdner

Kleinwort Have Blocked

Networking Sites.

“More than two thirds of London companies - led by top city firms - are now

banning or restricting the use of internet site Facebook over fears that staff are

wasting time on it. Many firms have now warned employees that "facebooking"

during office hours is a sackable offence.”


MANILA CITY HALL BANS FACEBOOK, TWITTER, GAMES

“Manila’s City Administrator has banned Facebook, Twitter

and other social networking sites—plus Farmville and other

games that are available through the internet—saying those

are preventing city hall employees from serving the public

efficiently.”


ARGUMENTS FOR SOCIAL MEDIA

• Quick communication and feedback.

• Reach a new, broader audience.

• Unmediated communication.

• Cost effective.

• Ready for what’s next.


ARGUMENTS AGAINST SOCIAL MEDIA

• Too much work.

• Too much legal liability.

- Public Records law

- Sunshine law

- Privacy issues

- Liability for errors or “endorsements”

• Security breaches.

• Too much criticism.

- “Godwin’s Law”


GODWIN’S LAW

“As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Mike Godwin, 1990


IS IT LEGAL?

Panama City, Florida Miami-Dade County, Fla.

West Palm Beach, FL

Anastasia Mosquito Control District

Judge Judy

Governor Rick Scott


…MAYBE

“…..The city would appear to have authority to establish a

Facebook page …..”

AGO 2009-19.

“The committee believes that listing lawyers who may appear

before the judge as ‘friends’ conveys to others the impression

that these lawyers are in a special position to influence the

judge.” Opinion No. 2009-20, Fla. Sup. Ct.


PUBLIC RECORDSSOCIAL MEDIA CHALLENGES

• Do you have to maintain all content?– Edit content– Delete inappropriate postings

• How do you maintain all the content?– Third party postings– Website operator control

• How long do you retain content?


PUBLIC RECORDSPOP QUIZ –TRUE OR FALSE?

1. All emails received by an employee or an official of a local government on a public computer must be maintained as a public record.

FALSE



2. The public records law applies to postings by a City Council member on a blog or message board regardless of whether the content is maintained on a public or private computer.

TRUE



3.Tweets from a city twitter account only have to be maintained by the local government for 30 days.

FALSE



4. Electronic documents or emails may be printed out into hard copy for record retention and the electronic data deleted.

TRUE



5. The streaming video of an official city commission linked to an official city website must be maintained forever.

FALSE



6. Information on a private FTP site, provided to and viewed by city employees in performing public business, where no copies of the information is downloaded or provided to the city employees, is not subject to the public record act.

FALSE


FLORIDA PUBLIC RECORDS LAW IN A NUTSHELL

• Access to public records guaranteed by Florida Constitution and Statute.

“Every person has the right to inspect or copy any public record made or received

in connection with the official business of any public body, officer, or employee of

the state.”

Fla. Const., Art. 1, §24

“[e]very person who has custody of a public record shall permit the record to be

inspected and examined by any person desiring to do so, at any reasonable time,

under reasonable conditions, and under supervision by the custodian of public

record or the custodian’s designee.”

F.S. §119.07(1)(a)


FLORIDA PUBLIC RECORDS LAW IN A NUTSHELL (CONT’D)

• Provisions apply to all units of local government.

• All record custodians must allow inspection or copying by any person requesting.

• Request can come in any form and for any reason.

• Only limitation is reasonable time and reasonable condition – no automatic or excessive delays in response.

• Records are public regardless of physical form – “made or received” in connection with “official business” – used to perpetuate, communicate or formalize knowledge.

• Unlawful withholding of public record basis for civil action – award of attorney’s fees.


THE TRAIN HAS LEFT THE STATIONOR…

• Government needs to get on board with social media – and take the steps necessary to protect itself.

• 2009 PEW Internet & American Life Project – 1 in 5 internet users searched for political information, posted political views or engaged in civic activity on a social network.


…THE LIGHT AT THE END OF THE TUNNEL IS A TRAIN?• Newspaper readership declining, local news

coverage is declining, government needs to find new outlets for communication to community.

• Technology continues to evolve and advance creating more benefits and opportunities for local government to provide citizens and visitors.


SOLUTION – FACE YOUR FEARS

• Enroll key personnel – political leadership (Mayor or equivalent), communications, public record keeping and legal.

• Develop a plan for social media.

• Adopt a formal social media policy.


PUBLIC RECORDS LAW ADVICE• Do not rely on media services to archive postings.

• Internet archive can access old web content – www.Archive.Org.

• Government webmaster or system administrator should be tasked with keeping complete record.

• All content government posts publish and store elsewhere.

• Screen snapshots of Facebook taken and stored daily.

• Hire outside record keeping service.

– GovLive Vault

– Peak democracy


SUNSHINE LAW ADVICE• Public officials should avoid on line relationships.

– Appearance of impropriety

– Unintended consequences

• Social media appropriate for “fact-finding” but not decision-making.

– Advise employees and committee appointees against use to fulfill decision – making responsibilities

• Do not have an expectation of privacy in on-line discussions.

– Use of public equipment or addresses

– Personal equipment or addresses used for “public” purposes


THANK YOU

Questions?

Kevin S. HennessyManaging Shareholder

Lewis, Longman & Walker, P.A.1001 Third Avenue West, Suite 670

Bradenton, Florida [email protected]

(t) 941.708.4040(f) 941.708.4024

kevin s. hennessy managing shareholder lewis longman & walker, p. a

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