Public Records Laws and Social Media Retention in
West Virginia Freedom of Information Act and Social Media
The West Virginia Freedom of Information Act was intentionally written to be “liberally construed” to protect residents’ rights to access public records. The Act determines that public records include all written content “regardless of physical form or characteristics.” This broad definition includes social media records in West Virginia.
Show West Virginia law text
Excerpt from West Virginia Freedom of Information Act
§29B-1-1. Declaration of policy.
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.
(4) “Public record” includes any writing containing information prepared or received by a public body, the content or context of which, judged either by content or context, relates to the conduct of the public’s business.
(5) “Writing” includes any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.
State Attorney General Guidance on West Virginia FOIA
In a document providing guidance on the West Virginia Freedom of Information Act, the State Attorney General clarifies the intent and scope of the Act. The law was enacted to provide “full and complete information” to residents, covering “virtually all documents and information retained by a public body, regardless of their form.” Under this guidance, social media records in West Virginia can be considered public records.
View the State Attorney General Guidance
Excerpt from The West Virginia Freedom of Information Act Handbook from the Office of the State Attorney General:
The State statute on public records, known as the Freedom of Information Act, was enacted for the express purpose of providing full and complete information to all persons about the workings of government and the acts of those who represent them as public officials and employees, so that the people may be informed and retain control. Its provisions must be liberally construed to carry out that purpose.
The Act applies to all State, county and municipal officers, governing bodies, agencies, departments, boards and commissions, and any other bodies created or primarily funded by State or local authority, unless their enabling statute specifically exempts them from its provisions. The records covered by the Act include virtually all documents and information retained by a public body, regardless of their form.
The WV-FOIA definition of a “public record” includes “any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.” W. Va. Code § 29B-1-2(4). A “writing” for purposes of the Act includes “any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.” W. Va. Code § 29B-1-2(5).
“The definition of a ‘writing’ contained in W. Va. Code § 29B-1-2(5) (1977) (Repl. Vol. 2007) of the West Virginia Freedom of Information Act includes an e-mail communication.” Syl. pt. 2, Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E.2d 317 (2009). However, the Supreme Court also held:
A “public record” under the West Virginia Freedom of Information Act (FOIA) is defined as “includ[ing] any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.” W. Va. Code § 29B-1-2(4) (1977) (Repl. Vol. 2007). Under the clear language of the “public record” definition, a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public’s business, is not a public record subject to disclosure under FOIA.
West Virginia Social Media Records Management in Practice
The City of Morgantown established a set of comprehensive guidelines for the use of social media as a channel for communicating with residents. The policy states that social media content “may be considered a public record subject to public disclosure” and that all sites will “adhere to applicable federal, state, and local laws.” Under the City of Morgantown’s interpretation, social media records in West Virginia should be maintained as a public record.
View City of Morgantown Social Media Policy
Excerpt from City of Morgantown Social Media Policy
5. The authorized administrators will monitor content on City social media sites to ensure adherence to both the City’s Social Media Policy and the interest and goals of the City of Morgantown.
6. The City reserves the right to restrict or remove any content that is deemed in violation of this Social Media Policy or any applicable law.
7. These guidelines must be displayed to users or made available by hyperlink.
8. The City will approach the use of social media tools as consistently as possible.
9. The City of Morgantown’s website at www.MorgantownWV.gov will remain the City’s primary and predominant internet repository of accessible online information.
10. All City social media sites shall adhere to applicable federal, state and local laws, regulations and policies.
11. Any content maintained in a social media format that is related to City business may be considered a public record subject to public disclosure. This may include a list of subscribers (excluding any information of a personal nature), posted communication, and communication submitted for posting.
12. Comments on topics or issues not considered to be within the relevant concerns of the City of Morgantown may be removed.
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