Local Government – Social Media and FOIA

McHenry Co. (ECWd) –

Questions have been raised regarding official social media sites of government entities and their content and/or access to it.  It appears the matter is tied to the recent January 2019 decision from the US Court of Appeals for the Fourth Circuit which basically outlined you cannot block people from commenting on official Facebook pages.

The question raised to us on this matter comes from matters tied to the Algonquin Township Road District and their official Facebook page and an FOIA request.

 “Is it permissible to disappear the records relevant to the request and then claim “there are no responsive records”?

Our short answer is a qualified No, however, it could be Yes depending on some unknowns as confirmed by the Illinois Attorney General’s PAC office and opinions of lawyers as it relates to the Freedom of Information Act.

A qualified “No” because the question assumes two facts we don’t know, there was a public record and it disappeared. If both of those assumptions are true then the third factor, as confirmed by the PAC office, is to know if there were responsive records when the request was received?   If there was not, then the response is appropriate.

We will do our best to address this and understand some may believe the matter is cut and dry, this one appears to have a lot of unknowns that normally are identified through correspondence between the PAC and the public body.

The request submitted: “I’m seeking the list of users blocked by Algonquin Township Highway Department on their Facebook page. 

The first question that must be answered, is there a public record, as that term is defined in the statute, of a list of users blocked from the page?

 5 ILCS 140/2(c) “Public records” means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.

One can easily argue the page showing blocked users was prepared for and in the possession of the public body, thus it would be a public record.  While the PAC may see it differently because technically the control of the page lies with Facebook, we think they would confirm it meets the definition of a public record.

Considering the Facebook Page of the Algonquin Township Highway Department is an official site and considered a public forum, it appears safe to assume if people were blocked there would be a page showing those names.  We will assume that can be considered a list of names and also a public record as defined in the law.

According to Ancel Glink (page 4), a well established local government law firm routinely cited by the local media, a public body is not required to furnish records which have been lost.

Now, this is the point where people are going to get upset and say nothing was lost but rather “disappeared” or destroyed.

We have confirmed, after the recent US Court of Appeals for the Fourth Circuit ruling, the Highway Commissioner took appropriate action and unblocked three people from the Official Highway Department Facebook page.

While we agree that was the smart thing to do and may prevent potential litigation, it appears upon unblocking a person there is no record saved on the Facebook software platform that reflects who was previously blocked, thus the record is lost.

We don’t know if such a record can be retrieved from Facebook or not, but on that point, the Attorney General’s PAC office has subpoena power and could subpoena the information that appears to have been lost when users were unblocked.  While we have yet to see them exercise that power, it is there for FOIA matters submitted for a request for review.

5 ICLS 9.5/140(c) ……..If a public body fails to furnish specified records pursuant to this Section, or if otherwise necessary, the Attorney General may issue a subpoena to any person or public body having knowledge of or records pertaining to a request for review of a denial of access to records under the Act.

What came first, the chicken or the egg? 

So the question becomes, as confirmed with the PAC, was there a public record of blocked people when the request was received?  If there was, the record should be provided. If there was and it was not provided, they would rule it as an FOIA violation but since the record was lost in the process of ensuring Constitutionally protected rights were not violated, I don’t know what could be done short of trying to get the record from Facebook.

If there was no record when the request was recieved, the response is appropriate.

I am confident if a request for review is filed on the matter above, the information we provided would be found to be accurate.

Food for thought:  If they know who was blocked, block them again for the sole purpose of creating a public record that was lost when they were unblocked, screen capture the page showing the names, then unblock them again.  Presto, the lost record is recovered.

For those interested in seeing what a real attempt at suppressing records looks like, look no further than this article on the Illinois Law Enforcement Training Standards Board and their failed 16 attempts of keeping records from us.  Reading their position and how the AG PAC office dealt with it brings clarity to how FOIA is applied.   I believe that was the second worst cases we have seen from a public body, Algonquin Township holding the top spot for now.

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