Do Public Entities Need to Save Social Media Posts?

Social media is a common method for communicating government information to the public, but how do data retention obligations apply to these sites? Specifically, MCIT members have asked whether they should contract with a third party to archive social media posts and the public’s comments.

Official Records and Records Management

From a risk management perspective, one of the first questions to ask is whether a legal obligation exists to archive the government entity’s social media sites, and if so, what that obligation may specifically entail.

The Minnesota Official Records Act provides that public entities “shall make and preserve all records necessary to a full and accurate knowledge of their official activities.” (Minn. Stat. § 15.17).

The Records Management Act (Minn. Stat. § 138.17) defines government records to include:

• All cards; correspondence; discs; maps; memoranda; microfilms; papers; photographs; recordings; reports; tapes; writings; optical disks; and other data, information or documentary material, regardless of physical form or characteristics, storage media or conditions of use
• Made or received by an officer or agency of the state and an officer or agency of a county, … municipal subdivision, or corporation or other public authority or political entity within the state
• Pursuant to state law or in connection with the transaction of public business by an officer or agency

Not every piece of government data that a government entity produces is automatically an official record. Moreover, not every copy of a record needs to be maintained. With a few exceptions, there is no obligation to maintain nonofficial records or data.

The government entity’s records retention schedule usually lists the official records and the length of time they need to be maintained.

Data Practices Act and Litigation Holds

In contrast, the Minnesota Government Data Practices Act (MGDPA) provides for public access to data maintained by the government entity. Generally speaking, there is no independent obligation under the MGDPA to retain data that are not official records. Moreover, there is generally no obligation under the MGDPA to produce data that the government entity does not have.

If there is an MGDPA request for data, then the data must be produced if the entity has it and the person requesting the data has a legal right to get it. A general rule of thumb is that if a government entity is not legally required to keep certain data, then it is often best not to keep it.

A caveat to this is if the entity is under a litigation hold. A litigation hold is a written notice to employees and individuals under an entity’s direction and control instructing them to retain any data, documents, emails, videos, etc. related to a certain issue that is or may be subject to specific litigation that is expected or in progress.

It is also notice to the information technology and records staff to suspend routine document destruction for both physical documents and electronic data. Litigation holds require entities to retain and maintain types of data beyond those required by the Official Records Act.

Identifying Official Records

It is up to the entity to determine whether its social media data constitutes an official record that must be maintained.

For example, a social media post announcing a special board meeting is not the official record of the board meeting. Similarly, a link to board minutes placed on a website for the convenience of the public is most likely not the official record of those board minutes.

However it is possible that other social media posts relating to the transaction of public business may be official records.

The Minnesota Department of Administration, Data Practices Office, provides tips for spotting the difference between official records and what are not official records under the Official Records Act and the Records Management statute.*

Documents with the following characteristics are more likely to be official records:

• Document is identified as an official record on the entity’s records retention schedule.
• Document describes official functions or the business activities and transactions of the entity.
• Document has administrative, evidentiary, fiscal, historical or programmatic value that will help explain the entity’s decision-making.

Documents that are not official records are more likely to have the following characteristics:

• Data are used as general reference materials.
• Data are duplicates or serve as a convenience copy of an official record.
• Data are transitory in nature, do not have long-term value and provide little insight into an entity’s decision-making processes.
• Data are drafts or working papers that were later incorporated into a final report or document.
• Documents are personal in nature.

Maintaining Social Media Data as Official Records

To the extent that information posted on a social media site are determined to be official records, the entity must consider how it will store, maintain and preserve these records. The organization may need to update its records retention schedule to include social media records if they are official records.

Electronic records on the whole provide some unique problems for retention. A social media archiving service is an option for maintaining social media official records, but it may not be the only option depending on an entity’s particular needs. For example:

• An archiving service may capture data that the entity does not need to maintain.
• An entity that has minimal social media posts that are official records may be able to meet its legal obligations by retaining a screen shot or a copy of those posts in a separate file on its network.

The Minnesota Historical Society offers “Electronic Records Management Guidelines” on its website that provides information on a variety of topics, including email and web content management.**

Consult with Experts

The legal obligations to retain data on social media sites will differ from entity to entity and will depend on how the organization uses social media to communicate.

MCIT encourages members to consult with their legal counsel and MGDPA responsible authorities or others tasked with retaining official records to determine the extent of these legal obligations for social media posts and the method of retention, if any, that will best fit the entity’s needs.

*MN.gov/admin/data-practices/data/rules/records-management/

**MNHS.org/preserve/records/electronicrecords/erguidelines.html