Each State and Territory in Australia has a public records body to guide government agencies on managing records. Depending upon the type of record, once retained, these records can be accessed by the public under information access regimes, such as Freedom of Information Acts or “FOI”. 

Under FOI, members of the public can access documents held by government agencies. A “document” is defined broadly in FOI legislation and includes not just paper-based material but photographs, maps, labels and computer based information.  A document for the purpose of FOI is almost the same as a “record” for the purpose of public records legislation.

About two years ago, our law firm started to receive requests for advice on how our government clients should respond to requests for access to social media posts under FOI. The questions related to various types of social media - Facebook, blogs and Twitter being some. However, all questions related to situations where the government agency was using social media to interact with its clients and a client then made an FOI request for “all documents” about the social media post. 

Initially the answers to these questions seemed to be straightforward.  FOI requests are for documents and, as the definition of document is so broad, we felt sure social media posts had to be included. A greater complexity became evident upon further analysis. 

Possession

Possession of documents is all important in both records management and FOI. When documents are in the possession of an agency they can be accessed through FOI.

As a concept, possession may be as simple as being in physical possession or custody of an object. However, at law another form of possession exists. Constructive possession may occur where although there is no physical possession, a person or organisation has a right to control an object held by another. An example of constructive possession is where objects are housed at an off-site storage service which under contract must look after the objects for you until you want to remove them. 

The Victorian case of Mildenhall v Department of Premier and Cabinet (No 2) held that an agency will be in possession of a document for the purpose of FOI not only when it has physical possession but also when it has constructive possession. The majority of Australian jurisdictions have approved the Mildenhall decision in cases considering when an agency is in possession (see breakout panel). 

From FOI legislation, we understand that the public only has a right to access documents that are in a government agency’s possession. From Mildenhall, we understand that the right of access is to documents in the physical possession, as well as the constructive possession, of an agency. 

So who possesses social media?

Sometimes, we need reminding that social media sites such as Twitter or Facebook, are not located on one’s computer. When a blog post or Facebook update is posted, that social media post resides on whichever server hosts the particular social media site. This server is most likely to be outside the government agency using the social media site; in fact it is most likely that the servers will be outside Australia. A government agency will not have physical possession of its social media posts, unless it hosts the site on which the post is located. 

As to constructive possession, the right to use a social media site is created through agreement on terms and conditions of use. The user agrees to provide the site with information for the benefit of using the site to engage with others. It seems unlikely that amongst those terms and conditions a user will have a contractual right that would amount to a right of constructive possession over the posted information. The outcome is that without physical or constructive possession of social media there is no right for members of the public to access those documents under FOI.

Without something more, social media entries cannot be accessed through FOI. 

Many Australian public records agencies provide guidance on capturing and storing records of social media. However, guidance varies on how social media records should be captured. Generally, agencies are invited to make a decision based upon whether the social media post is a business activity. If the agency believes the post is a business activity, then it should retain the post. It is ironic that by capturing records of social media activity, agencies are also creating documents that are in the physical possession of agencies for FOI.

What does all this really mean?

As a quick overview, a social media entry can be a document for the purpose of FOI because document is defined broadly enough to include computer stored information. For a member of the public to make an FOI request, he or she must be seeking documents held by an agency, that is, documents in the possession of the agency. A social media entry is unlikely to be in the possession of an agency unless the server hosting the social media forum is located at the agency itself. If that is not the case, social media entries made by government agencies will be in the physical custody of the owner of the servers that host the social media site. Therefore, the decision on whether a social media post is a business activity will also decide whether a document exists for the purpose of FOI.

What does this all really mean? The internet and social media sites are readily accessible. If a person is sufficiently interested in a social media post, they can probably find the entry for themselves, so why does this matter?

The answer lies somewhat in the fact that members of the public do make requests for social media posts and expect agencies to hold copies. Additionally, the increase in social media sites and rapid evolution of Web 2.0, along with budgetary restraints and inconsistent guidance from public records authorities can lead to inconsistent approaches to retaining social media records. Agencies may think that record keeping obligations can be met retrospectively through printing pdfs of social media activity if and when an FOI request is made. This will not work if the social media host changes accessibility or even ceases to exist (remember MySpace?). Social media records must be retained with method to ensure they can be found when required at a later time. This means that agencies must capture social media records in a consistent and searchable fashion.

What do we do? 

Agencies need to establish concrete guidelines to identify when they are engaging in business activities in social media. The format chosen to record social media activities needs to be able to reproduce the social media posts, if required. Finally, however the record is stored, it must be able to be searched for and found in the event of an FOI request.

As social media sites develop and change, and our ability to source new areas of information evolves, it is important to ensure that social media activities are captured in a meaningful way to ensure future use and access.  The decisions of today will affect our ability to access evidence of social media activity in the future.

Elisa Hesling is an Associate at FOI Solutions, Solicitors and Consultants, a law firm that advises government agencies on administrative law issues, such as FOI and privacy.