Why councillors need to keep social media records
They say what happens on the internet stays on Google forever, but that’s not good enough for Queensland’s Crime and Corruption Commission (CCC) and the State Archivist.
You may be surprised to learn that by law, every single social media post and comment relating to council business needs to be captured and safely archived – and the failure to do could constitute corruption.
The warning to councils, mayors and councillors was delivered in a publication released by the CCC in July 2019. While the guidelines are still fresh, the laws they highlight are not. The current public record laws were introduced in 2002 and are broad enough to capture paper and digital records; including videos, images, text messages, emails, social media interactions, data and messaging applications. It should be noted the Public Records Act of 2002 applies to all public authorities – not just local governments and their representatives.
Why the sudden focus on recordkeeping?
The CCC publication came on the heels of joint guidelines from the Local Government Association of Queensland and the Office of the Independent Assessor. Both documents focus on social media and the potential for misconduct and corruption.
This is part of the ongoing fallout from Operation Belcarra and continuing investigations into Queensland councils and councillors. With the next council elections due in March 2020, councillors can expect their actions on social media to be greatly scrutinised. The aim of releasing the guidelines is to stop unsavoury social media activity, but a cynical political spectator would suggest the two sets of guidelines may be weaponised and used against various candidates in the lead up to the election.
What is a public record?
While the LGAQ and OIA guidelines broadly covered social media use, the CCC guidelines focus on recordkeeping. The document provides some much-needed clarity on what records need to be kept and clearly puts the overall responsibility for recordkeeping with council CEOs.
Any record created or received in a mayor or councillors’ official capacity that relates to their responsibilities under the local government act and is related to the administration of council business is a public record.
Public records can range from obvious documents (council meeting minutes and budget documents) to something less permanent (a post-it note with instructions to act on a report or an Instagram comment). They are anything that could be considered evidence of a decision, transaction or action relating to council business.
Examples of social media public records include:
a council Facebook post with a complaint from a ratepayer
a video or audio recording of a meeting about progress on a council project
a social media post talking about an upcoming council event
comments on a social media post from members of the public requesting more shade at a park that results in a budget decision
However, personal activities and interactions with family and friends, political membership or activities, or electorate, ward or divisional activities are not considered to be council business, so are exempt from recordkeeping requirements.
Why do public records have to be captured and stored?
A common view on public records on social media is that they are already publicly available and therefore no further action is required. Unfortunately, that approach to recordkeeping isn’t complying with a whole raft of laws.
All public records, including digital records such as social media interactions, conversations within messaging applications and text messages are subject to legislation and legal processes such as discovery and subpoena.
There are a number of laws that require councils to engage in proper recordkeeping practices including the Local Government Act 2009, the Public Records Act 2002, the Right to Information Act 2009, and the Information Privacy Act 2009. Councils also have to follow a number of recordkeeping policies and guidelines issued by the State Archivist.
Putting this hefty pile of legislation to one side, public social media posts and comments could not be considered an adequate public record as they can be deleted and/or altered by the author or the administrator of an account. Records could also be lost or become inaccessible due to changes or the design of the social media platform.
No records = corruption
The CCC states in a very clear warning that “inadequate management of public records can constitute corruption. It can also result in dismissal and/or civil action against the individual or organisation involved.”
With such a stern warning, you would think Queensland’s politicians, councils and other government authorities would be prioritising social media recordkeeping. But this doesn’t appear to be the case.
My experience is that recording social media posts has long fallen into the too-hard basket. This is in part due to a lack of understanding of how the social media platforms work and what needs to be captured as a public record.
Another key factor is the effort required to capture social media posts and comments as a public record. The recommendations usually involve taking a screenshot of a posts, pasting it into an email or word document with relevant information and then emailing it. Of course this doesn’t factor in videos, stories or comments…
Despite the required effort to capture these social media posts, these public records usually have a quite a short lifespan under the retention schemes recommended by the State Archivist. While it is up to individual council’s to set their own retention schedules, the state government currently recommends its social media records can be disposed of in a matter of days.
Individuals who want to do the wrong thing would be interested to read the CCC admission that inadequate recordkeeping has hindered its investigations in the past and that the use of instant messaging apps is particularly problematic when it comes to the extraction and identification of public records.
It’s clear the CCC is interested in recordkeeping for the purposes of investigating allegations of corruption. Whether the authorities will penalise councils or councillors for failing to keep records even if there is no investigation into corruption is another matter.
While one councillor was recently fined for his misconduct on social media, as yet, no council or councillor has been charged with failing to keep adequate records.
What this means for councils
Under the Public Records Act, the council CEO is responsible for recordkeeping. Each individual council is required to implement its own recordkeeping policies and procedures that outline expectations for the capture and management of public records
These policies should:
Outline the recordkeeping roles and responsibilities of the CEO, council employees, contractors, mayors and councillors
Define council-specific recordkeeping requirements
Specify the use of council-approved technologies and applications
Define a public record and provide advice on how to identify one
Identify how public records will be captured and managed including:
responsible for the capture of emails
the management of public records in social media or instant messaging apps
the use of private accounts and how and when public records are captured
capture protocols for records contained on council issued mobile devices
outline when public records can be disposed of and under what circumstances, including authorisation, disposal methods and documentation.
Don’t touch this…
Some CEOs may be pleased to discover they have the power to limit what social media platforms, apps or other technology councillors may use. If a council would like to stop councillors from using Twitter, they can exclude it from its approved technology list.
The deliberate use of unapproved technology by council employees, mayors or councillors would be a breach of council policies. For mayors and councillors this may result in a complaint to the OIA and would be inappropriate conduct within the meaning of the LG Act.
The power to determine what apps and software councillors may use to conduct council business is about security as much as it is about fighting corruption. But it is an area that will have to be monitored closely and regularly updated in line with modern technology use.
Early adopter councillors will need to be careful about experimenting with new social media platforms. No-one wants to be facing inappropriate conduct charges for experimenting with TikTok.
What it means for councillors
While the CEO is ultimately responsible for recordkeeping, elected representatives still have to be across the requirements of the law, the council’s guidelines and understand what is considered to be a public record.
Councillors are also responsible for ensuring any public record they create or receive on their social media channels, instant messaging or emails are captured in line with their council’s policies. They cannot dispose of records unless authorised.
Mayors and councillors must not delete any posts that are council-related in social media or any other apps, even when they are in a private account.
If councillors are unsure about their recordkeeping responsibilities, they should take the recordkeeping checklist to their CEO.
Cinc Social Media director, Kate Wilson has worked with a number of Queensland councillors and councils to create social media policies and strategies. She has also provided group and bespoke training for councillors and staff covering content creation, campaign strategies and community management.
Contact Kate to discuss how Cinc Social Media can help you grow your social media.