5/11/2014. FOIA, the Privacy Act, Federal Records and Agency Use of Social Media. What is social media? What are social media records?
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1 FOIA, the Privacy Act, Federal Records and Agency Use of Social Media ASAP National Training Conference Hannah Bergman Office of the General Counsel May 14, 2014 What is social media? Various activities integrating web technology, social interaction, and user-generated content. Agencies use social media both internally and externally Share information Support business processes Connect people to government Allows individuals to collaborate, create, organize, edit, comment on, combine, and share content, likely resulting in the creation of Federal records. 2 What are social media records? Social media content meeting the definition of Federal records must be managed in accordance with all applicable laws and regulations. The statute and its implementing regulations place responsibility with each agency to determine what Federal records they create or receive. 3 1
2 Internal agency social business tools Does your agency use a social business tool to allow employees to collaborate? Jive What about Google products? Sites Drive Chat Hangouts Social media is more than just Facebook or YouTube 4 What are social media records? If any answers are YES, then content is likely to be a record under the FRA: Does it contain evidence of an agency s policies, business, or mission? Is the information only available on the social media site? Is this tool being used in relation to the agency s work? Does the agency use the tool to convey official agency information? Is there a business need for the information? 5 FOIA and social media records The definition of an agency record under FOIA is broader than under the Federal Records Act Four factors: Creator s intent to retain or relinquish control Ability of the agency to use and dispose of record Extent to which personnel have read/relied Degree of integration into agency record systems or files 6 2
3 Soliciting input from the public National Declassification Center s blog post asking for input on its portion of NARA s Open Government plan 7 Comments on Blog Dan Alcorn April 2, 2014 at 8:48 pm The most requested historical topic for declassification prioritization on the Public Interest Declassification Board (PIDB) blog has been the 1963 assassination of President Kennedy. In light of the very strong public interest evident during the 50th anniversary of that tragedy last fall as well as on the PIDB blog, the National Declassification Center should prioritize the remaining classified records related to the assassination for declassification. Andrew April 3, 2014 at 11:23 am I urge the NDC to expedite the declassification of all records related to the Kennedy assassination. Michael Rhodes April 3, 2014 at 8:28 pm Every single document dealing with the Vietnam War should be available to the public yesterday. Any military action where 58,000 Americans lost their lives is kind of important. Gary L. Aguilar, MD April 4, 2014 at 5:29 am What possible justification can there be for the government to withhold information on a 50+-year old murder case that the government and the mainstream media contend is an open-and-shut case of murder by a non-conspiring lone nut? The continued, corrosive secrecy has served only to convince the public that the real truth is not what the government has said it is. jefferson morley April 4, 2014 at 4:25 pm Please notify the appropriate representatives of the CIA that the 1,100+ JFK assassination-related records, held under the JFK Records Act, should be queued up and available for NARA review and release in the near future. Please continue to solicit input from the public about their views on the JFK assassination records. Please read the comments posted here as carefully as you read the correspondence of the CIA s attorneys. Despite what they will tell you, the presumption of the law on JFK records is full disclosure. Please think about the importance of President Kennedy s assassination in our culture, and ask yourself not as the National Archivist or an official of the Archive but as a U.S. citizen, what is the public interest and what are NARA s true priorities. And please let us know what you decide! Thanks for listening. William Paris April 4, 2014 at 6:06 pm In the news today was a report of the Senate voting to declassify aspects of a CIA report regarding interrogation tactics. Then you have Morell s testimony leaving you want to ask what was he thinking I make mistakes at work. I m sure you do to. It s ok. Unless we don t learn from those mistakes. How can the citizens of the US learn from what happened in the 60 s without all the facts. Marshall April 4, 2014 at 6:32 pm There is no higher priority for the NDC than the immediate and full release of all documents relating to the assassination of John F. Kennedy. Truth does not have an expiration date. Greg Holden April 4, 2014 at 6:55 pm This year marks the 50th anniversary of the Warren Report, a document most of the American public does not believe, according to polls. The government organized and funded this attempt at whitewash. This would be a perfect year for the government to open all records so we can get closer to the truth and get past the lone nut lies. Pete Debono April 5, 2014 at 3:28 am I am sick and tired of the government keeping documents about the JFK assassination secret over 50 years after the fact. Our government claims that a lone nut did it. So what could possibly be in these files that cannot be released half a century later? These files should have been released decades ago. Release them now! Tom April 5, 2014 at 4:49 am I too urge the NDC to expedite the declassification of ALL records, documents, recordings, photographs, artifacts, EVERYTHING related to the assassination of John Kennedy. Philip Zozzaro April 5, 2014 at 8:53 pm I would want any classified document relating to the Kennedy Assassination being released, Watergate and MK Ultra program Marshall hester April 5, 2014 at 9:59 pm Truth has no expiration date. Release all JFK assassination related files at once. Brad Milch April 4, 2014 at 5:39 pm JFK historian/researcher/investigative journalist/webmaster Jefferson Morley has a list of the top JFK files & records he & his readers feel should be released before all other withheld material remaining listed at his website JFKFacts.org. To citizens these withheld files are an enslavement of American history that prevents American children (including yours) the opportunity to receive a complete, unrestricted education on the life, death & events occurring during the Presidency of John F. Kennedy. Just as slavery of humans was abolished during the lifetime of Abraham Lincoln, the slavery of citizens history concerning the JFK assassination needs to be abolished by your organization immediately to physically demonstrate America is true to its democratic foundation. 8 NARA response Don April 7, 2014 at 4:52 pm I wanted to reply to the numerous comments regarding Kennedy records created and maintained by NARA as part of the JFK Assassination Records Collection. An entire FAQ regarding these records may be found here: Please note also that NARA does not have authority to unilaterally declassify information that is the equity of another agency and that records in JFK collection have already been reviewed. Congress created the Kennedy Collection when it passed the Kennedy Assassination Records Collection Act of This statute directed all Federal agencies to transmit to the National Archives and Records Administration (NARA) all records relating to the assassination in their custody. The Kennedy Act also created a temporary agency, the Assassination Records Review Board (ARRB), to ensure that the agencies complied with the Act. In addition to records already open at NARA prior to the passing the Kennedy Act, the Collection now consists of previously withheld records of the Warren Commission, records of the Office of the Archivist, and newly released materials from the Kennedy, Johnson, and Ford Presidential Libraries. Other agency records in the Collection include records of the House Select Committee on Assassinations, records of the Central Intelligence Agency, the Federal Bureau of Investigation and a small amount of material from a variety of other agencies, including the Office of Naval Intelligence. The Collection now includes over five million pages of records. With a very few exceptions, virtually all of the records identified as belonging to the Kennedy Collection have been opened in part or in full. Those documents that are closed in full or in part were done so in accordance with the Kennedy Act, mentioned above. According to the Act, no record could be withheld in part or in full, without the agreement of the ARRB. The guidelines for withholding records are outlined in the provisions in Section 6 of the Act. The full report of the ARRB is available online. A copy of the Act is in Adobe Acrobat PDFAppendix C of the ARRB Report mentioned above. In all cases where the ARRB agreed to withhold a record or information in a record, they stipulated a specific release date for the document. In addition, according to Section 5(g)(2)(D) of the Act, all records in the Kennedy Collection will be opened by 2017 unless certified as justifiably closed by the President of the United States. 9 3
4 NARA s Internal Collaboration Network Federal Record? FOIA-able? Searchable? How is this produced to the public? 10 What should agencies consider when scheduling social media content? Agencies must identify the official record (for FRA purposes) and determine how it will be managed. Some social media records may be temporary; with a transitory, short, or long term retention. Some may even be permanent, such as a blog by an agency senior official. 11 What else should agencies consider when working with social media content? Social media may include comments or other postings which are inconsistent with an agency's policies and may require removal from the site. If necessary, that content may require an approved records schedule. 12 4
5 Moderating comments Many agencies moderate comments from the public on blogs and other social media outlets Comments may be removed for failure to comply with posting policies ie i.e., vulgar language or other problematic info (Requester posts SSN when asking for a record) Moderated comments are also likely to be records that should be captured and managed 13 Privacy Act concerns The Privacy Act says no agency shall maintain a record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity. What is a Privacy Act record? The Act defines a record as any item, collection, or grouping of information about an individual that is maintained by an agency... and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual What does this part of the Privacy Act mean for social media records? Gerlich v. DOJ, D.C. Circuit 2013 decision Deals with agency employees use of Facebook and Google to ascertain political affiliations of applicants Such use violated the Privacy Act But what about capturing and managing comments from the public on Facebook page? Importance of limiting capture and management to situations where the citizen is interacting with the agency These records may be responsive to a Privacy Act request 15 5
6 How do agencies implement social media capture? Temporary records may not need to be captured Assess business needs and evaluate risks Capture long-term or permanent records 16 Export into a recordkeeping system How do agencies implement social media capture? Methods to capture social media records include: Using web crawling software Using web capture tools to capture content and migrate to other formats Using platform APIs Using RSS Feeds, aggregators, or manual methods Using tools built into some social media platforms to export content 17 What are an agency s records management responsibilities when dealing with providers and third parties? Be aware that the provider could discontinue their service or delete information from an agency's account. Agencies may stop using a platform at any time In either situation, the agency is not relieved of its records management and possible capture obligations. Consider whether agency contracts address these questions. 18 6
7 What are an agency s records management responsibilities when dealing with providers and third parties? Determine if provider can export the complete record If yes, include Instructions for notification and export requirements 19 NARA Bulletin on Social Media Current guidance NARA Bulletin : Guidance on Managing Social Media Records Outlines high-level requirements and best practices for capturing records created when Federal agencies use social media 20 What other NARA guidance is available?* A White Paper on Best Practices for Social Media Capture Records Express Blog A Report on Federal Web 2.0 Use and Record Value Toolkit for Managing Electronic Records Frequently Asked Questions About Records Management 21 7
8 Contact Hannah Bergman
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