One of the challenges for the GRAMA working group has been how to handle "new media" like Facebook and Twitter in the confines and principles of a sound open records law.
Using Facebook as the central point for understanding the question, here are some examples of the challenges that I think illustrate both the complexity of new media, as well as the (possibly) obvious simple solutions that don't take the teeth out of transparency policies.
- Interactive posting.
- Archival process.
- Private messaging options.
Archival process. For the most part, archiving is not up to the state of Utah, or any governing body. Even if Facebook functioned in a way today (it doesn't) that made automated archiving possible, that could change tomorrow, and those decisions will be made by Facebook with business factors in mind, not government transparency concerns. It wouldn't be much to ask that -- on a regular basis -- cities, lawmakers, and agencies simply cut an paste wall/comment content into an email for archiving, but what about private messages and Facebook chats, which aren't logged by Facebook indefinitely?
Private messaging. Direct messages on Twitter, one-to-one Facebook messages, and chats, again, could easily be manually archived, but that process would be widely unreliable, and is, again, dependent on what these third party companies decide to do going forward. We could develop an intricate procedure today, and next week, Twitter could make a change that renders any automated state process unusable. An obvious solution here would be a "best practices" policy (i.e. "Hey Senator... Don't private message"), but checks would be "on your honor," so not much different than the situation now, without addressing new media specifically within the GRAMA law itself.
With these three challenges in mind what is the solution? Considering that any constraints must also be weighed against discouraging agencies and lawmakers from using new media entirely -- something I believe would be a detriment to access in exchange for no significant guarantee of transparency -- how does Utah embrace new communication and interactive tools and still ensure a valuable level of public confidence in a transparent process?
What if the solution is as simple as accepting that when it comes to new media, no open records law -- no matter how aggressive -- is going to ensure everything is on record? The law could simply require agencies and elected officials to use a dedicated, already archived and recorded email address (.gov) as the contact on any Facebook or Twitter account activity, which would give you an automated record of at least one side of the conversations, and organizations from the legislature to city offices could institute a "best practices" training for officials on a regular basis. Maybe even throw in a "disclaimer" of sorts that reads: "Anything you do on Facebook or Twitter is fair game. Anything retrieved by the media/public isn't protected as private under this law"?
In short, new media will always offer an option for private, undocumented exchanges (I have 11 apps on my phone that would allow me to do that right now). Is it worth banning the use of such media for lawmakers to do away with the risk? I say no.
But there are simple steps that can be taken to keep their use as transparent as possible, without taking new media completely off the table as either completely private, or completely unused by state government.