Advisory Opinion 24AO:0012
DATE: November 21, 2024
SUBJECT: Public Records Requests and Government-Moderated Social Media
Zachary Goodrich
Executive Director and Legal Counsel
Iowa Ethics and Campaign Disclosure Board
Mr. Goodrich,
We are writing in response to your request dated September 24, 2024, seeking an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3. This opinion concerns clarification over what requirements a government body would be subject to in the event of a public records request for social media posts contained on a government-moderated social media account.
This opinion concerns subject of the opinion Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497â1.2(2): â[t]he board may on its own motion issue opinions without receiving a formal request.â IPIBâs jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
QUESTION POSED:
If a records request is made for social media posts, such as a government-moderated Facebook page, is the government body required to provide individual screenshots of the posts or can the government body simply direct the requestor to the public social media page?
OPINION:
For the purposes of Iowa Code Chapter 22, âpublic recordsâ are defined to include âall records, documents, tape, or other information, stored or preserved in any medium, of or belonging toâ a government body. Iowa Code § 22.1(3)(a). When a government body within the scope of Chapter 22 uploads content to a government-moderated social media page, such as a Facebook group, or creates a post on social media using an account that represents the body and/or its representatives in their official capacity, there is no question this creates a public record within the definitions set forth by § 22.1(3).
Iowa Code § 22.3A provides direction for ensuring public access to data processing software used to store records. While the substantive guidance described by the statute predates modern social media, it is clear that the legislature intended § 22.3A to be broadly applicable to the electronic storage and retrieval of public records. As defined in § 22.3A(1)(e), âdata processing softwareâ refers to
[A]n ordered set of instructions or statements that, when executed by a computer, causes the computer to process data, and includes any program or set of programs, procedures, or routines use to employ and control capabilities of computer hardware. As used in this paragraph âdata processing softwareâ includes but is not limited to an operating system, compiler, assembler, utility, library resource, maintenance routine, application, computer networking program, or the associated documentation.
A âcomputer networkâ is in turn defined as âa set of related, remotely connected devices and communication facilities including two or more computers with capability to transmit data among them through communication facilities.â Iowa Code § 22.3A(1)(c). A social media website, like Facebook, would appear to fall into this category.
The Code states that â[a] government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body's ability to permit the examination of a public record and the copying of a public record in either written or electronic form.â Iowa Code § 22.3A(2)(b). However, with regards to such records, the Code also provides that â[a]n electronic public record shall be made available in the format in which it is readily accessible to the government body if that format is useable with commonly available data processing or database management software,â though the government âmay make a public record available in a specific format requested by a person that is different from that in which the public record is readily accessible to the government bodyâ and may charge the costs associated with producing the record in that alternative format. Iowa Code § 22.3A(2)(d) (emphasis added).
This language suggests that analysis must vary depending on the nature of the government bodyâs access to its own electronic records. In the context of a social media page or profile belonging to a government body subject to Chapter 22, the central question is whether or not a given âpostâ exists solely on the social media site hosting it, as opposed to public records which are accessible in another format to the government body and have merely been published as uploads to one or more social media sites.
The former category is broad, consisting of the formatting of profiles and pages themselves, âAboutâ sections and similar information authored by a government body for its public-facing accounts, events or other announcements made through the use of the hosting siteâs user interface tools, and any textual posts or comments created by the government on its official pages or profiles. This category would also include materials which were originally drafted outside the host site, as in the case of a flyer created as a Word document which is published as a final product through a government bodyâs social media account(s). In each case, the relevant factor is that the social media platform is the sole or original âformat in which [the electronic public record] is readily accessible to the government body,â as this is the criteria described by Iowa Code § 22.3A(2)(d). Assuming the social media platform in question is free to use and widely available to the public, that format would also presumably qualify as âuseable with commonly available data processing or database management softwareâ for the second part of the subsection.
Therefore, if a requester submits a Chapter 22 request for public records in this category, the government body may satisfy its responsibilities as lawful custodian by directing the requester to the public social media page, as doing so provides the requester with access in the same format that the government body itself enjoys. As the second half of Iowa Code § 22.3A(2)(d) explains, the government body may also choose to produce a record in another format according to the requesterâs preferences, but this is not required, and the government body may then charge âreasonable costs of any required processing, programming, or other work required to produce the public recordâ in that format, along with any other costs authorized elsewhere in Chapter 22.
The second category under this analysis consists of public records which are accessible to the government body in another medium which have been published through a government bodyâs social media account in addition to previously or separately existing in another medium accessible to the government body. For these types of records, both provisions of Iowa Code § 22.3A(2)(d) imply that a lawful custodian is still subject to the same production requirements that they would follow for any other public record, given that the record in question would continue to exist in its prior format and a request for production in that specific format would not be âdifferent from that in which the public record is readily accessible to the government body.â
As an illustrative example, if a county board of supervisors chooses to publish PDF copies of its weekly meeting minutes to its Facebook page as a supplement to other publication requirements set forth elsewhere in the Code, a requester seeking a PDF for a particular meeting would still be entitled to the release of that particular record as normal. The county board in this instance could not discharge its duties simply by directing the requester to its Facebook page to locate the minutes for themselves, as social media would not be the only format in which the requested PDF, as an electronic record, would be readily accessible to the government body. In other words, a government body may not circumvent their production obligations as a lawful custodian of records under Chapter 22 by using a social media page as an unsorted archive for records, at least so long as the records remain accessible to the government body in other mediums.
This leaves a third category of records which are only readily accessible to the government body through a social media site but which are not equally accessible to the public at large, as these records may still be subject to Chapter 22 (even if they are otherwise confidential under one or more provisions of Iowa Code § 22.7). This may include not only private correspondence with third parties conducted through social media (e.g. direct messages, or DMs), but also analytics automatically produced for the government body as a byproduct of their presence on social media.[1]
Nothing in this opinion should be read to require a government body to generate a new record which does not already exist. As explained in another IPIB advisory opinion on the topic of electronic records, 24AO:0003 Data and Public Records Requests, a government body may be required to produce existing data, âeven if some type of manipulation is required to make the data readable,â but there is no accompanying requirement that the government body perform custom searches or rearrange existing data to answer a query. Similarly, Chapter 22 does not impose any retention requirements for public records, meaning that nothing in this analysis would prevent a government body from deleting or editing a social media post consistent with an applicable retention policy. Thus, if a request was made for a deleted or edited record after the fact, the government body would only be responsible for releasing the record if it was âstored or preservedâ elsewhere by the body. See 22FC:0016 Doug Weir/City of Ruthven (finding no violation where a city board failed to respond to a request for Facebook posts, as the board had closed and deleted their entire Facebook account before the request was made, meaning the materials sought were no longer ârecords within the Cityâs possessionâ).[2]
We conclude by noting that this advisory opinion does not address related public records issues which may arise when a government body uses a third-party social media platform to conduct its business, including the governmentâs ability to restrict access to its public pages or scenarios in which the third-party social media company itself has banned an individual user from accessing its website. These types of situations could affect the above analysis and would likely require case-by-case evaluation.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Catherine Lucas
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
Submitted by:
Alexander Lee
Agency Counsel
Iowa Public Information Board
Issued on:
November 21, 2024
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification of reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.
[1] For example, the definition of âpublic recordsâ contained in Iowa Code § 21.1(3)(a) could reasonably be read to include certain viewership metrics generated by Facebook for organizational pages and public events, which are only accessible to the account responsible for that content. Since these records are in the possession of the public body but would not be readily available to the public through the use of commonly available data processing software, the government body would still be required to respond to requests for this type of records individually.
[2] In the dismissal order for 22FC:0016, IPIB also noted that â[t]he posts on the page were always accessible by anyone while the page was active,â consistent with the analysis in the present advisory opinion that access alone could be sufficient for public access.