Lawyers Journal

Public Law Conference addresses social media, Open Meeting Law

Attendees of the Fourth Annual Public Law Conference learned about recommended boundaries on governmental use of social media and ramifications of the commonwealth's changes to the Open Meeting Law.

Keynote speaker Robert Nasdor spoke on the interpretation of the OML by the Massachusetts Attorney General's office. Attorneys from the Massachusetts Information Technology Division - Deputy General Counsel Stephanie Zierten and Project & Social Media Coordinator Jessica Weiss - presented a session on The Use of Social Media by Government Agencies. The conference, which was sponsored by Public Law Section, was held June 2 at the Massachusetts Bar Association's Boston office.

While Nasdor acknowledged that municipal officials may need clarification on changes to the OML, he said that small adjustments can help municipalities meet the new requirements. He explained that officials should consider three factors determining whether a body must adhere to the OML:

  • the body's charge
  • whether the body is formally created
  • whether it performs a public function.

The changes to the OML mandate that the chair of an official body post a publicly accessible notice of the meeting, along with a list of all reasonably anticipated topics, at least 48 hours in advance. Attendees expressed concern regarding the specificity of the topics listed, as well as the difficulty of finding an acceptable public location for the notices.

Nasdor recognized these difficulties and explained that recommendations for municipal procedures would be available from his office in the Division of Open Government shortly after July 1. He also said that different communities would find varying solutions to adhere to the new rules. For example, some might find a waterproof binder to be a good solution for listing notices, while others might consider a large covered bulletin board or monitor to be useful.

In their skills training session, Zierten and Weiss described social media boundaries government officials should implement to avoid potential legal problems.

"Every tweet is a public record," said Weiss. "Social media is a tool to achieve communications goals … but right now, it's very unclear what the implications are."

The biggest barriers to the use of social media by agencies include the OML, public records law and terms of use on certain Web sites. While the terms of service are currently under negotiation with Web sites such as YouTube, agencies can find some internal solutions to avoid other problems.

While employers should clearly list their expectations regarding employees' use of social media, responsibility falls on the employees to live up to these guidelines.

Employees' behavior online should depend on whether the use of social media is listed as a job function. Best practices should include respecting the agency's acceptable use policy, listing a disclaimer on Web sites and securing separate social media identities for work and personal use.

Agencies should protect both themselves and their constituents' First Amendment rights by clearly stating and enforcing both Web site terms and comment policies on social media Web sites. Remaining aware of public accessibility to online collaboration and discussion is also important to avoid OML issues.

All agencies must also adhere to public records law by retaining all information that appears on the Web site.

©2017 Massachusetts Bar Association