Is social media the latest FOI threat?

By Doug Fisher

It’s not so much Wikileaks that concerns me these days, but wikis, secrets and how social media may pose new threats to freedom of information. Wikileaks dedicates itself to publicizing secrets and is the controversial online site that released thousands of documents relating to the war in Afghanistan. But some ne’erdo-well public official can use similar technology that’s easily and publicly available for exactly opposite means – to keep secrets.

It’s easy to create a private wiki on a site like Wikispaces, for instance. Need a private social network? Ning is at your service, Buddy Press will turn a Word Press blog into a social network that you can set up privately, and Yammer specifically bills itself as the “private social network for your company” (or, by extension, your city council, your sewer district board, your school board, etc.)

Want to share some documents out of public view? Put them on Google docs and don’t give anyone the link but those who need to know. There are dozens, if not hundreds, of digital services on which things can be tucked away out of public view. You might ask what’s new here. The telephone made private meetings much easier, for instance, and most FOI laws have come to grips with the electronic era. South Carolina’s, for example, talks about materials “regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.” And a meeting is convening a quorum “whether corporal or by means of electronic equipment.”

But who possesses the files when they are in the data “cloud” and the servers could be anywhere, far outside your local or state jurisdiction? Even in the physical world, who hasn’t had a run-in with an agency or board that made its law firm custodian of some particularly sensitive file or process and then tried to claim lawyer client privilege?

And we’ve already seen cases of officials’ using private e-mail accounts to conduct public business and then claiming no access to the archives. Legal experts vary in their concerns, but it will be a lot easier if we address the issue in legislatures now than in courts later. So here are some suggestions. Begin lining up support for language in your state’s FOI law that the state and public retain a clear interest in any information no matter where it resides and in whatever form, whether known now or in the future (no reason we can’t borrow some language from our own freelancer contracts – if it’s good for us, it’s good for the public).

The response from a recalcitrant official might still be “sue me,” but this could give us more ammo in such cases. Also useful would be language that clearly holds public officials civilly and criminally responsible for the willful use of any electronic service to avoid the FOI law. Prima facie evidence of this could be conduct of public business on any electronic storage, messaging, sharing or social media site without clear public notice and access and without the knowledge of the governmental entity’s designated information technology official.

Third, it may be time to seek language making every governmental agency do an annual information technology audit (and make clear the report is presumptively public record). This would include listing all the entity’s accounts on all electronic services. Protests of too much work and expense can be expected, but it’s not only good public policy but also good management – a strong argument I think we can make in these economic times when cost cutting and efficient government are all the rage.

Finally, use that crowdsourcing ability of your social networks on Facebook, Twitter and elsewhere to watch for any hints of officials skirting the law. After all, we might as well use some of those same social media tools for our FOI benefit.

© Doug Fisher

Doug Fisher, a former AP news editor, teaches journalism at the University of South Carolina. You can contact him at or 803-777-3315.

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