Tag Archives: facebook and opra

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page “was used for the sole purpose of discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.

 

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Are Facebook Posts and Other Computer Records Subject to OPRA?

As the number of public agencies with a social media presence grows, questions arise regarding whether the content of the social media sites is a “government record” subject to OPRA.  We believe that it is.

OPRA defines government records very broadly and includes “information stored or maintained electronically.”  This should cover posts made on a public agency’s official Facebook page, as well as information such as web browser history on computers used by public employees during their official course of business. Computers are, in other words, electronically storing everything a public employee does during the course of his or her day and that activity creates government records – be it posting on a Facebook page or entering data into budgeting software.  At least one court has held that “metadata” is subject to OPRA.

The difficulty, however, is how to gain access to such information.  Though all government records should be retained and public agencies should go through the proper process for disposing such records, employees tend to treat data with less care than hard copy records.  So, electronic records are often deleted and may not always be retrievable from the server.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.