Open Records in Indiana
Electronic records in Indiana are subject to the Access to Public Records Act (APRA). Although electronic records are not discussed explicitly, it does state that it applies to any government records “regardless of form or characteristics.” It also states that government organizations found to be contravening this act can be fined up to $500 per violation.
How Indiana Defines a Public Record
The Access to Public Records Act states that “public record means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.”
Social Media Guidance Documents
Specific insight into social media and the Access to Public Records Act was provided when the Indiana Public Access Counselor argued that the Town of Morristown had violated the act when it deleted Facebook comments. This advisory stated that:
“Social media has not been addressed ad nauseum in prior opinions. The ever-changing landscape of electronic communication presents unique challenges for determining the accessibility of public information. Although I do not suggest the Town intentionally violated the APRA, it is important to note public agencies should not use social media as a way of avoiding the obligations of the law.
“It is my opinion that Facebook data clearly falls within this definition. If a public agency creates a website or social media account and maintains its content, then any records request relevant to that site would need to be fulfilled. This would be the case even if the agency needs to petition the site’s server to gain access to the information. It is no different than any other third-party contractor or vendor an agency would employ to maintain certain information. It is recognized it may take some time to retrieve, but it must be released pursuant to a request. The Town is obligated to satisfy the information request and work with the third-party vendor to do so.
“As to the allegation the site has deleted your comment(s), it is my opinion an agency can moderate comments to a social media site as they see fit. For example, if an inflammatory or inappropriate comment is posted to a site, then an agency, as administrator of the site, has discretion to remove it. I am aware of nothing in case law or statute that would restrict the discretionary rights of a public agency to moderate public forums. The caveat to this is the agency must retain a copy of the comment or discussion and also make them available for inspection. This can be in electronic format as a file of a screen shot or a comment print-out or however the information presents itself. The important consideration to remember is that all comments to an agency web site must be retained. Of course, the agency administrator of the site may also restrict all comments and not create a public forum for such discussion.”
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