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Port Orchard council receives refresher on social media legal obligations
Summary
City staff led a training during the Jan. 21 study session on how the Public Records Act, recent case law and state campaign rules affect council members’ use of social media; staff urged elected officials to retain posts about city business and described possible personal liability for failing to respond to records requests.
Port Orchard City Council members received a training Jan. 21 on legal risks and record-keeping obligations tied to elected officials’ social media use, led by city staff during the council’s study session. The presentation reviewed how the Public Records Act, state and federal case law, and Washington campaign rules intersect with personal and official posts.
The training summarized several takeaways the city said council members should treat as binding practice. “We recommend that you retain everything,” the presenter said, adding the city may ask council members to provide copies and fill out affidavits if social-media content is the subject of a records request. The presenter also warned that, in at least one recent case cited, individual council members faced the onus of proving they had no responsive records.
Why it matters: staff told the council that a post on a personal account can become a city record if it “relates to the conduct of government” or is prepared in an official capacity, and that a post’s status is determined on a case-by-case basis. The training cited the West v. City of Puyallup decision as the Washington case recognizing that a personal social-media post can be a public record when it concerns city business. Staff also reviewed Valderrama v. City of Sammamish as an example of litigation over messaging apps and retention, and discussed the U.S. Supreme Court decision named in the presentation (transcript: “LendKey v. Freed”) as having narrowed the conditions under which a personal account becomes a First Amendment public forum.
Key points staff emphasized: - Public-records obligations remain unchanged: sharing or reposting city information from a personal account can create an obligation to retain that content if it is related to city business. Staff repeatedly urged council members to preserve posts that might concern city activities. - Individual liability risk: the presenter described a recent case in which council members were asked to search messaging apps and provide affidavits about whether responsive records existed; if the member cannot demonstrate retention, the individual—not the city—may bear responsibility for missing records. - Public forum vs. records retention: the training said the Supreme Court decision discussed reduces the risk that a personal account automatically becomes a public-forum subject to First Amendment limits on content moderation, but that decision does not change public-records duties. - Use of public facilities in campaign activity: the presenter flagged RCW language cited in the training about limits on using public facilities for campaign activity; the presentation noted websites and certain official social media accounts can be treated as public facilities in some circumstances.
Staff recommended operational steps: keep relevant posts and screenshots in original context when possible, turn off auto-delete features, and be prepared to respond to staff requests for affidavits and preserved posts. The presenter said the city will provide model affidavits and that the city’s public-records officer (identified in the discussion as Brandy) will ask members to search and certify whether responsive posts exist in the event of a records request.
The training also covered narrower points: monitoring expectations for city accounts (whether comments are considered monitored communications), quasi-judicial constraints (disclosure obligations when council members receive contacts about land-use matters), and incentives for using separate campaign pages to isolate campaign material from official communications. Staff invited council members to submit example posts for offline review and offered to provide the city’s written policies and the slide packet distributed to the council.
Staff closed by offering follow-up briefings and legal advice in executive session for any council member who wanted detailed counsel on potential consequences. The presenter encouraged members to contact the public-records officer with questions and to consult posted guidance on the city’s internal CAO and records web pages for retention procedures.
