Legal Corner: Social Media and Arizona Public Records and Retention Laws

Christina Estes-Werther, League General Counsel

"How long do I retain information posted on the city's website?"

"Do I have to print and save screenshots of the city's Facebook page to comply with a public records request?"

"How do I produce a public record of an elected official's blog post when the town doesn't manage it?"

These were just a few of the questions raised at a recent League training presented by Kathryn Marquoit from the Arizona Ombudsman Citizens' Aide Office and Jerry Lucente-Kirkpatrick from the Arizona State Library, Archives and Public Records. The training provided guidance on how to apply Arizona's public records and retention laws to social media and other emerging technology.

Local governments have utilized Facebook, Twitter, Instagram and other types of social media as an effective communication tool to keep the public informed in real time about a myriad of community issues. Arizona public records and retention laws apply to these websites and social media platforms since it is the "content" that drives the analysis of whether the information is a record, not the type of device or platform used to post the information.

Since Arizona law was written at a time when physical copies of records were the most common form of recordkeeping, how does a custodian of records properly retain or reproduce these new types of social media records?

Here are a few guidelines discussed by the presenters to help you manage information posted in various electronic formats.

  • If the social media content produced by the public body meets the definition of a "record" in A.R.S. ยง 41-151.18, it must be managed according to the retention schedule similar to a physical record, which is based on the type of record series (e.g. administrative, law enforcement, library, etc.).
  • Unique information that only exists on your website such as public comments on a Facebook page may be considered a record. Consider limiting this type of information on your social media sites to avoid having to directly capture this information. By creating original content offline and posting the content online as a copy, it is unnecessary to print or save screenshots of the information since the custodian of records can maintain the original content pursuant to the retention schedule.
  • Be familiar with the "Terms of Use" on social media sites and determine if there are any special provisions that apply to elected officials or governments. These platforms are not designed to retain your material according to Arizona law so that responsibility rests on the municipality.
  • Posts by an elected official on a personal blog, website or social media platform may still be public records. Develop a social media policy to educate and train the staff, elected officials and public about the responsibilities to manage these types of records. See the resource list below for suggestions on developing or updating a policy in your city or town.
As social media and technology platforms continue to evolve, local governments must continue to adhere to existing law and adapt their policies and practices in a manner that provides an accurate accounting of official government activities pursuant to public records and retention laws.

To view the entire training online, check out the League's YouTube channel.

Additional resources include:
Arizona Ombudsman Citizens' Aide Office website

Arizona Agency Handbook - Chapter 6 Public Records

State of Arizona Social Media Policy

National Archives Guidance on Social Media

Web 2.0 Governance Policies and Best Practices

Social Media Policies Database

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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