San Mateo updates Twitter policies in legal settlement: City and mayor highlighted in debate over social media’s role in public records

“Unblocked my twitter 2 all so everyone can c important things I do. Like eat this donut,” Mayor David Lim wrote Thursday.

Last month, San Mateo got wrapped up in the legal debate over how social media plays out under the California Public Records Act. The city faced litigation regarding its Police Department and mayor’s use of Twitter, which Sunnyvale resident Angela Greben argued wasn’t in accordance with existing law.

Over the past week, the city and Greben came to an agreement that San Mateo would update its social media policy, archive the Police Department’s direct messages on Twitter, and Mayor Lim would unblock his Twitter account.

Greben, a paralegal and advocate, filed the petition citing the PRA, which outlines citizens’ rights to access information on government business; as well as the First Amendment rights to petition the government for a redress of grievances.

With so much of the world’s communication now conducted online, lawsuits across the country have raised similar questions about the legality of prohibiting someone from accessing social media. For example, the U.S. Supreme Court is in the process of ruling on whether North Carolina’s law banning convicted sex offenders from Facebook, Twitter and other social media sites is lawful.

In the local case, Greben pointed to the Police Department not archiving direct messages on its Twitter account. That issue came to light when the city responded to her PRA request saying someone hacked the Police Department’s Twitter account and deleted direct messages. She also wanted a judge to decide whether Lim could block or mute people on his own Twitter account.

Greben cited a recent California Supreme Court ruling as legal fodder for her argument. Previously, PRA law only applied to communications made from official accounts, meaning a government official’s cellphone or private email addresses were off limits. But in March, the court ruled in a case against the city of San Jose that the public does have a right to review officials’ emails and text messages pertaining to public business, even if they’re made from personal devices.

Although that case didn’t explicitly dive into the ever-changing social media landscape, advocates like Greben contend the rules should translate to government and elected officials’ accounts.

City Attorney Shawn Mason agreed the law hasn’t quite kept pace with technological advancements, but it’s an issue San Mateo is actively addressing by updating its own policies.

“It’s true that these laws, particularly the Public Records Act, were drafted at a time when business was conducted by paper and face to face, or on the telephone. And we’re now having to deal with those [regulations] drafted under those conditions in a world where business is normally conducted electronically in email or texts or social media. So it’s creating issues. People have to stop and think about how those rules apply in a constantly evolving environment with communication being conducted in different ways,” Mason said.

So in the interest of avoiding litigation and recognizing that Greben’s demands could be met, they opted to strike an agreement. Moving forward, the city will update its social media policy to specifically denote no city-managed social media account will block people — although this wasn’t its practice to begin with. What was an oversight, the Police Department’s account will be archived under an existing contract San Mateo has with a third party for other city-managed Twitter accounts, he said.

Greben also raised concerns about Lim blocking or muting a few people from his Twitter account.

Initially, Lim agreed to put a disclaimer at the top of his Twitter page, but eventually offered to not block anyone for the remainder of his time on the council — which will end later this year.

Mason noted the city and Greben still have a fundamental difference of opinion on whether elected officials’ personal Twitter accounts relate to public business. But in the interest of avoiding costly litigation, the city and Lim made concessions.

Greben said she was pleased by the results and hopes it sends a message to others about the legal nuances over the public’s right to air their grievances or access records.

“When you’re a public official and you start using social media accounts to conduct public business and what’s going on with your constituents, but then you’re blocking people because you don’t like what they have to say, that is really within the state of California violates the Public Records Act,” she said.

But she agreed settling the ongoing debate would likely require court decisions or legal action to clarify how the law applies to ever-growing new technologies.

“It’s such a new territory for both the user and the reader,” she said. “When you can easily post something that says, ‘come to our City Hall meeting’ versus turning around and posting ‘here’s my cute kids,’ it creates a fuzzy gray area.”

David Snyder, an attorney and executive director of the First Amendment Coalition, said his agency will also be watching how public officials comply with PRA requests in the digital age.

“The medium in which these records are transmitted doesn’t matter, the question is if they relate to the public business,” Snyder said. “This is certainly an important area because so much communication — both by public officials, public entities or private individuals — happens on Gmail, it happens on Twitter, it happens of Facebook. So government agencies are on notice after this [state Supreme Court] decision, that those are public records.”

But there remains an legal gray zone when it comes to accounts that elected officials contend are for their personal use.

Now Lim, and a number of other elected representatives, go so far as to offer online disclosures that their social media posts are their own opinions and don’t reflect governmental views.

Mason noted he and Lim pointed out that public funds also weren’t used to maintain his Twitter account, and the city won’t explicitly be requiring elected officials to change their existing practices.

However, Mason said the city would likely forewarn future councilmembers that there is at least one person who might file a lawsuit should elected representatives start blocking people online.

samantha@smdailyjournal.com

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Twitter: @samantha_weigel