Texas Tribune Texplainer: What social media information is subject to state open records laws?

By Alex Samuels
The Texas Tribune
Originally published Aug. 25, 2017

Hey, Texplainer: what social media information is subject to state open records laws? Is there anything off limits when it comes to what citizens can request to see?

All social media is subject to state freedom of information laws, but whether you get the information you’ve requested depends on whether the communication is considered official business of a governmental body.

According to Joe Larsen, counsel for Sedgwick Law in Houston, official business is any matter over which a governmental body has any authority.

“It doesn’t really matter what medium it’s on or what website it’s on,” Larsen said. “If it’s official business, it’s subject to the Public Information Act.”

If you’re wondering whether the information you’re requesting falls under the “official business” umbrella, Larsen said to ask yourself whether it’s a matter over which the governmental body has authority, administrative duties or advisory duties.

If the answer is ‘yes’ to any of those three questions, the information you’re requesting should be open for the public to request and view.

The state’s government code is broad when it comes to requests for information, including social media information:

“The general forms in which the media containing public information exist include a book, paper, letter, document, e-mail, Internet posting, text message, instant message, other electronic communication, printout, photograph, film, tape, microfiche, microfilm, photostat, sound recording, map, and drawing and a voice, data, or video representation held in computer memory.”

“The main question is going to be whether [the requested information] relates to official business and whether it’s a matter over which the governmental body has authority over which it can act,” Larsen said.

Despite the expected openness of the government when it comes to handing over public data, there’s still procedural problems when it comes to getting social media data. For example, how would a governmental body get the emails that a person or journalist requested to see?

During the past three legislative sessions, lawmakers have attempted to pass measures that would make government officials the custodians of their own official business emails. This would’ve made them responsible for keeping a record of their work emails. However, these measure have never passed.

Larsen said there’s no limit on what a person can request to see, but a governmental body can deny a request that seeks information that isn’t considered public.

“If you ask for fairly private stuff, you’re just not going to get it,” Larsen said.

To get the most up-to-date social media information available, Larsen recommends being as thorough and specific as you can when filing an open records request.

“If you want texts, ask for texts. If you want what’s been posted on their Facebook, ask for what’s been posted on their Facebook,” he said. “Be sure to ask for anything that’s posted on any social media account. “You can request whatever you want and it’s going to be up to the governmental body to say, ‘No you can’t have it.’”

The bottom line: You can request anything under the state’s Public Information Act. Whether that information is up for grabs, however, is a different story. If you want information from a public official’s social media account, the law says you can have it — as long as the communication regards official business of the governmental body.