Submission Date:
Question:
For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?
Answer:
This is a timely question, because New York's Committee on Open Government (the authority on all things FOIL), has recently stated[1] that not only do public libraries have to follow FOIL, but cooperative public library systems have to, as well. So, the answer will be useful for libraries and library systems[2] alike.
NOTE: For those of you who need a quick primer on FOIL to get the most of this question: FOIL is the state law requiring timely public access to public agency records (with exceptions). As you can imagine, complying with this obligation requires a clear understanding of what constitutes a "public agency" is, what a "record" is, and what any exceptions might be.
FOIL defines a public agency record as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…” FOIL §86(4).
There is the potential for financial costs for agencies that fail to make timely and compliant FOIL disclosures.[3]
Further guidance on FOIL is available at https://opengovernment.ny.gov/freedom-information-law.
Before we dive deeply into this question, aside from the above small primer on FOIL, it is necessary to consider what "social media" is, in the FOIL context.
When websites were first developed and published by local governments (and libraries), the phrase "social media" was not used to refer to them.
Since that time, government agency use of not only web sites, but more socially interactive utilities like Facebook and Twitter, has exploded. From public "state of emergency" announcements via Twitter, to town council meetings streamed live via Facebook, government use of social media is rampant.
Despite this explosion, the phrase "social media", as used today, is not legally defined. Most critically, the phrase "social media" is not found in the LGS-1[4], which in New York's comprehensive list of record "types" that are subject to mandatory retention.[5]
Among other things, this means there is no one catch-all obligation to retain (and thus have them around to have to disclose) records posted via social media. Which means that instead of focusing on the medium (social media) we have to focus on the message (the "type" of record the social media is being used to create and/or transmit).
While certainly not the exclusive "type", the LGS-1 category social media is mostly used to create and/or transmit is type #68: "Public Relations".
Here is how the LGS-1 categorizes public relation records and sets their retention periods:
Public Relations 68 CO2 11, MU1 11, ED1 11, MI1 11
Official copy of publication, including newsletter, press release, published report, calendar, bulletin, recording, homepage or other website file, educational or informational program material prepared by or for local government, and associated consent forms.
NOTE: Specific publications are listed in other places in this Schedule. Before using this item to determine the minimum legal retention for a publication, determine if that publication is covered by a more specific item.
a
Publications which contain significant information or substantial evidence of plans and directions for government activities, or publications where critical information is not contained in other publications: RETENTION: PERMANENT
b
Publications where critical information is also contained in other publications or reports, publications which document routine activities, publications which contain only routine information, or publications (such as webpages) that Local Government Schedule (LGS-1) General Administration 15 facilitate access to government information on the Internet: RETENTION: 0 after no longer needed
NOTE: Appraise these records for historical significance prior to disposition. Records with historical value should be retained permanently. Local governments should consider permanent retention of samples of publications covered by part "b" of the above item. Contact the State Archives for additional advice in this area.
What does this quote mean? Among other things, unless a library is using a social media publication to be the "official copy" of news, it does not have to retain the copy.
And if the copy of the social media post is not retained, it is not available to be disclosed per FOIL (although the official copy might).
So, with all that established, let's re-visit the member's questions:
For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?
Considering that the LGS-1 confirms that libraries are not obligated to retain everything posted on social media, but FOIL requires that if the record exists and is subject to FOIL, the library must disclose it, I will boil the answers down to 4 very simple things:
1. The library should have a FOIL compliance policy.
Why?
This will ensure the library has the right system and designated personnel for receiving, evaluating, replying to, and considering appeals of FOIL requests.
For more information on putting a policy in place, see the "model rules for agencies" at https://opengovernment.ny.gov/freedom-information-law#model-rules-for-agencies.
2. Social media should never be the sole copy of a notice or publication put out by a library.
Why?
If it is, the social media content may be subject to a "permanent" or a defined period of retention, even though the library doesn't control the means of publication (thus creating more work to properly retain the copy). This means that when the record is requested under FOIL, the Library had better be able to provide it, even if the social media provider is no longer in business, or for some reason, the content is no longer in existence.
3. Every public library[6] should have a records retention policy that tracks its obligations as set forth in the LGS-1 and sets the retention periods and purge times for routine records.
Why?
First, it's the law.[7]
Second, using the LGS-1 forces your library to consider what "type" of records it is generating and what retention periods apply to them--including records generated on and/or being pushed out by social media.
Third, but just as critically, it will encourage your library to purge or formally archive records no longer actively needed, minimizing the content to be disclosed under FOIL.
Fourth, it will better position your library's FOIL officer to timely respond to requests.
And fifth (but of the most relevance to the questions) it will enable your library to determine what, if any, of its social media content must be retained and thus ready for disclosure under FOIL (hopefully not much).
4. Whenever possible, the library should use its own media for primary communications, only relying on social media for secondary "boosting" of content.
Why?
This will make sure the primary copy the library is obligated to retain (if the LGS-1 requires retention) is controlled by the Library, making it simpler to fulfill a FOIL request.
5. The Library should only use its own social media (not accounts belonging to employees) for creating library records.
Why?
Because if the library relies on social media owned by employees and doesn't take care to generate in-house primary copies of certain records, the content generated by the employee could be subject to FOIL (for an example of how that can happen, see the COOG commentary FOIL AO 19732, found at https://docsopengovernment.dos.ny.gov/coog/ftext/f19732.htm).
Still with me? Have I lost you in the morass of FOIL and LGS-1? Hang in there!
I realize this is getting rather complex. So here are some practical examples of social media messages a library might post, and how that post might play out under the lens of FOIL, LGS-1, and other factors.
|
Social media message |
Places where message is published |
Publication a record subject to FOIL?
|
Retention period of record(s) |
Considerations |
|---|---|---|---|---|
|
Twitter post: "We have a new director!" with a link to more information about the new director on the library website. |
Library website
Library newsletter
|
YES for all. |
Twitter post: 0 after useful
Library website: 0 after useful Library Newsletter: Permanent |
If only Twitter was used, the retention period of the announcement via Twitter would be 6 years.
Regardless of format, each version of the record is subject to FOIL.
|
|
Facebook post: "You can find the proposed 2023 budget here [link to library website]"; post also found in a link on an employee's page, as they discuss the budget process on their personal account. |
Library Facebook page
Library website
Hard copy of proposed budget available from library circulation desk upon request
Copy of proposed budget posted with board materials per OML.
|
YES for all. |
Twitter post: 0 after useful
Library website: 0 after useful
Library newsletter: Permanent
Library budget: Permanent
Board packet with budget information: Permanent |
The budget and meeting materials must be retained per the LGS-1; all the records available to the Library are subject to FOIL, but there is no obligation to retain the Facebook post.
Meanwhile, as they are not an official publication by the library, the link and commentary by the library employee is not subject to FOIL or any retention requirement.
|
|
Library Instagram post: "Look at this blank wall and imagine seeing a smiling face next year! The Library is applying for a variance to enable a drive-up window for pick-ups and returns; a hearing before the Zoning Board will be held on DATE," with link to hearing notice and renovation plans.
|
Boosted notice and link to materials: Instagram
Copy of building plans and notification of Zoning Board of Appeals meeting, along with proof of publication and mailing to neighbors and community as required by local law.
|
YES for all. |
Instagram post: 0 after useful
Building permit documentation: permanent.
Proof of mailing and publication: varies (see LGS-1).
|
When mailings and publication of public notice are set by law, a library should ensure the precise publication requirements are followed; social media can supplement awareness but cannot replace required means of notice and publication. |
|
Tweet from the library: "After review as required by policy, the Library has determined that the book "Gender Queer" is properly included in the catalog." |
Library Twitter account
"News" section of library website
Library also has a record of complete decision-making process
|
YES to all. |
Tweet: Because it is not the only means of notification, only for so long as useful.
Announcement on web site: Because public relations record is redundant to case file, only for so long as useful.
Actual record of decision: 6 years, but per LGS-1, consider archiving for future reference after retention period has expired.
|
This is one to consider carefully.
If the library's Twitter is set up to encourage extensive discussion of the decision, the library should consider archiving the Twitter content, as it will be subject to FOIL and may be of archival value.
However, while the Twitter content may be subject to FOIL for so long as it exists, if not archived nor accessible, there is no obligation to save it, and thus no concern that it was not properly stored.
|
|
Doodle poll linked from library's Facebook post: "Should we add a children's story hour at 6PM on Saturdays?" Poll solely conducted on Doodle, announced only via Facebook.[8]
|
No other primary publication. |
YES. |
Retention period: because this arguably falls into LGS-1 category 603 ("Program and exhibit file documenting planning and implementation of programs"), 6 years. |
When planning library events, a file containing the full record should be kept--including a screen shot or image copy of the social media process at the time it was used--so disclosure per FOIL can be affected without having to return to an old social media post or other third-party resource.
|
|
Not a message, but social media information requested per FOIL:
List of usernames blocked from the Library's Twitter account.
|
Let's consider 3 scenarios:
1) the library only maintains the list on its Twitter account;
2) the library maintains a list, drawn from its Twitter account, in a "social media management" file;
3) The library blocks usernames only if they do not follow the Library's Code of Conduct with respect to social media; the list is kept with other "Code of Conduct" records.
|
YES to all forms. |
Retention period: as set by library policy, either specifically or using a catch-all period. |
The documentation of a decision to bar a username (or names) from the library's Twitter will be subject to FOIL; however, what the record looks like will be determined by how the library reaches and then documents that decision.
If the Twitter account is active and the printout of the lists can be obtained, that can be subject to FOIL; but if another record provides the information, the printout from Twitter might not be needed to fulfill the request for information. |
When considering the examples above, and the member's questions, the important take-aways are:
- Know what records the library has; and
- Have a good system for disclosing those records upon request (if they are subject to FOIL).
In each of these examples, it should be clear that reliance on third-party social media to house the sole copy of the FOIL-able record is not the optimal way to do business. On the flip side, no fancy software is needed to archive contemporaneous social media records; rather, libraries should be using their record retention policies to determine how their records are generated, and how they are managed to be ready for disclosure under FOIL.
With a little planning, this can be done economically and in a way that furthers the library's commitment to information access and transparency
Thank you for hanging in there with me on this one! May all your FOIL requests be clear, and all your social media be impactful.
Below are the retention periods set by the LGS-1, specifically for libraries.
591 CO2 340, MU1 304, ED1 165, MI1 254
Incorporation, chartering and registration records: RETENTION: PERMANENT
592 CO2 341, MU1 305, ED1 158, MI1 255
Accession records: RETENTION: 1 year after accessioning procedure becomes obsolete NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.
593 CO2 342, ED1 166, MI1 256
Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: RETENTION: 0 after superseded or obsolete
594 MU1 306
Directory of public library system and member libraries, prepared by public library system (member library's copy): RETENTION: 0 after superseded or obsolete
595 Library card application records: RETENTION: 3 years after card expires or is inactive
596 CO2 343, MU1 307, ED1 159, MI1 257
Borrowing or loaning records: RETENTION: 0 after no longer needed
597
Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records
a When no copies of original materials are requested: Local Government Schedule (LGS-1) Library/Library System RETENTION: 0 after no longer needed
b When copies of original materials are requested: RETENTION: 5 years after order is completed
598 CO2 344, MU1 308, ED1 160, MI1 258
Catalog of holdings
a Manuscript or published catalog: RETENTION: PERMANENT
b Continuously updated catalog: RETENTION: 0 after superseded or obsolete
599 CO2 345, MU1 309, ED1 161, MI1 259
Individual title purchase requisition which has been filled or found to be unfillable: RETENTION: 1 year
600 CO2 346, MU1 310, ED1 162, MI1 260
Records documenting selection of books and other library materials: RETENTION: 0 after no longer needed
601 CO2 347, MU1 311, ED1 163, MI1 261
Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: RETENTION: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.
602 CO2 348, MU1 312, ED1 164, MI1 262
Patron's registration for use of rare, valuable or restricted non-circulating materials: RETENTION: 6 years
603
Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:
a Parental consent records: RETENTION: 6 years, or 3 years after child attains age 18, whichever is longer
NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System 156 b Attendance sheets and registration forms, when no fee is charged: RETENTION: 0 after no longer needed c All other records: RETENTION: 6 years after exhibit closed or program ended NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.
[1] See the advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f19797.html.
[2] I am a fan of transparency, but not necessarily this new position by the COOG. But now is not the time to discuss that!
[3] From FOIL Section 89 4 (c) "The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed...."
[4] As of January 2023. LSG-1 can be found here: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page
[5] The LGS-1 does not create obligations under FOIL. That said, because it defines "types" of records, and sets their retention periods (after which they can be discarded, and thus, incapable of being disclosed), it is a handy way to think about handling "types" of records subject to FOIL.
[6] In this case, this means all but association libraries. That said, all not-for-profits should have a record retention policy, and for an association library, tracking the retention terms in the LGS-1 is not a bad place to start.
[7] http://www.archives.nysed.gov/records/laws-local-government-records-law-57a
[8] I know this is not a preferred method of decision-making for libraries (for one of many reasons, it is not optimally accessible), I am just including it as an extreme example.
Tag:
FOIA/FOIL, LGS-1, Policy, Privacy, Public Libraries, Record Retention, Social Media
