Nearly every Massachusetts city, town and government entity now uses social media to engage with the public. What's considered appropriate conduct for elected officials or government employees using social media platforms, and how can the content and correspondence created through that interaction be preserved under the state's public records law?

EAST BRIDGEWATER – When former East Bridgewater Selectman Brian Connors recently passed out copies of a social media posting made by a current board member that singled him out for criticism then questioned whether that opinion was representative of the board as a whole, it cast a spotlight on a digital age issue that’s raising new questions for old institutions.

Among them: what’s considered appropriate conduct for elected officials or government employees using social media platforms, and how can the content and correspondence created through that interaction be preserved under the state’s public records law?

Nearly every Massachusetts city, town and government entity now uses social media to engage with the public.

Just Friday, in nearby Easton, an elected official stepped down from a town administrator search committee after controversial postings he made on Facebook were brought to light.

A labor and employment attorney told The Enterprise such postings could lead to discrimination complaints from prospective candidates.

Under state law, any communication to and from an official government social media account is subject to public records disclosure. That includes private messages sent from official government accounts on Twitter, Facebook or other platforms.

“Basically, if it were on a piece of paper, would it be a public record? If the answer is yes, then it would be a public record,” said Brian McNiff, a spokesman for Secretary of the Commonwealth William Galvin’s office.

Galvin’s office recommends that cities and towns create their own archives of social media messages rather than relying on third-party hosts such as Facebook or Twitter to back up the posts. One way of archiving the records could consist of taking screenshots and downloading videos.

“The question is what kind of record can you keep? That’s a challenge,” said Lauren Goldberg, managing attorney for municipal law firm KP Law, which represents more than one-third of the cities and towns in Massachusetts. “It’s much easier to conceptualize how to retain a piece of paper than how to maintain a social media posting. This is the cutting edge of public records law.”

Snapchat, for example, is designed to automatically delete messages after they’ve been viewed. It isn’t widely used by government entities, but it holds the potential to create complications for any city or town that uses it. Newer versions allow users to save screenshots within a limited time frame.

Bridgewater-Raynham Regional School Superintendent Derek Swenson said his district doesn’t currently have any hard policies for how the social media content produced by its employees in their official capacity is backed up, nor does it have any policies governing the use of social media for employees using district-owned accounts or personal accounts, whether on or off the clock, but he encourages staff to recognize that digital forums like Facebook and Twitter are public and anything that appears on them could reflect on the district or themselves as a professional.

“We encourage them to be reasonable, to be responsible,” he said. “There are First Amendment rights that I can’t infringe upon, but they’re encouraged to know that it could be viewed by the general public and reflect on their professionalism.”

Swenson said the district doesn’t have any particular process for archiving and preserving the content under the public records law, instead relying on the social network’s automatic archiving of posts. He said he’s the only person authorized to use the district’s official Facebook page.

Connor Read, the interim Town Manager in Easton, where social media activity has spurred more than one controversy over the past year, said the town has been exploring working with companies that specialize in archiving social media data.

“A lot of times when the technology evolves faster than state laws, companies start reaching out,” Read said.

Right now, employees are instructed not to delete any official town posts. The town has a similar policy for elected officials.

The line between what is and what isn’t a public record can become somewhat blurry when public officials use personal, private social media accounts. The distinction may become even murkier when an official discusses government business on a private Facebook or Twitter account.

Under current law, there’s ample room for interpretation when it comes to public officials’ use of private social media accounts, Goldberg said.

“The public records law’s goal is to ensure information in the public domain ends up there,” Goldberg said. “Is posting something on Facebook about a matter you expect you’re going to have to deal with in a couple months a violation of the public records law? I do expect a court is going to have to deal with these things.”

In its current form, existing state law doesn’t provide a sufficient answer, she said.

Some cities and towns have adopted policies that address municipal officials’ use of private social media accounts.

In Easton, after a town Conservation Commission member used his private Facebook account last year to post content that was criticized as anti-Muslim and sexist, selectmen adopted a new policy that “public comments, in any forum, that contain racial slurs, express bigotry toward a group ... shall be considered conduct unbecoming a town official and shall constitute good cause for removal for any appointed official.”

Such policies, however, could be interpreted as limiting an individual’s First Amendment rights to free speech. That said, people are ultimately responsible for their own statements and actions, Moss said.

“At the end of the day, a person who posts whatever they want without discretion does so at their own peril,” Moss said. “It’s a balancing act.”

Attorney Elizabeth Valerio, a principal at the firm Deutsch Williams Brooks DeRensis & Holland, recommends adopting a clear disclaimer on any account operated by a city or town.

A sound municipal policy should designate which employees are responsible for maintaining the social media accounts and should require that the accounts be created with official, not private, email addresses. Town employees should not use official accounts to express personal views, she said.

Communities that operate their social media accounts as open forums could find themselves powerless to remove unwanted posts from third parties due to First Amendment and public records requirements. Alternatively, a municipal social media account could operate as a limited public forum. To do this, the municipality would adopt a policy stipulating terms of use that reserve the city or town’s right to remove comments that are off-topic, harassing, obscene or discriminatory.

That’s the approach Easton takes, Read said.

“It’s a bit of a gray area,” echoed Read, the Easton town manager, of social media and public records access. “Hopefully next year we’ll be able to work on getting some solutions.”

Careful removal of only posts that violate narrowly defined terms of use would not run counter to the First Amendment, according to Valerio.

Goldberg said it often takes time for the law to catch up to the technology.

So far, Swenson, the B-R superintendent, said social media hasn’t been at the root of any problems or controversies that district has faced, at least during his tenure as superintendent, but “social media is changing the way schools and public entities operate.”

“It’s a very, very powerful tool,” he said. “It can be a good thing or not-so-good thing at times and my expectation would be that all employees use it in a reasonable and appropriate fashion.”

Got news tips? Contact Tom Relihan at trelihan@enterprisenews.com, or (508)427-4014.