Social Media and Public Record

Today, we are going to talk about social media and how elected officials are responsible for their accounts, even if it is not them posting things regularly.

Most people know that elected and government officials are subject to broad public records disclosures in Florida. The laws are intentionally vague to encompass just about everything related to public service. Phone logs, emails, calendar meetings, documents, development applications, contracts and so on are all public records and can be requested to be viewed by anyone... even anonymously.

Most people do not know that this also extends to social media pages that are operated or represent these same officials. If an entity or individual would be subject to records disclosures for the other things, most likely they are subject to records disclosures for social media and other online activities.

Let's take a look at social media, in particular Facebook.

Three of our county commissioners operate a Facebook page titled "Commissioner".

Rebecca Bays:
https://www.facebook.com/RebeccaBaysforCitrus

Holly Davis:
https://www.facebook.com/HollyDavisCitrusBOCCdistrict5

Jeff Kinnard:
https://www.facebook.com/JeffKinnardCCCdist1R

A fourth operates a candidate campaign page

Diana Finegan:
https://www.facebook.com/profile.php?id=100075474626531

The fifth (Janet Barek) does not operate a formal social media page. All four of the five have a personal account as well (Kinnard does not, that I can see).

Since these are public officials, anything produced in relation to their job becomes public record. A post showing them at a ground breaking. A post written to talk about a county issue. Something they share that relates to the county. You get the idea. All of those things would create a public record for the page... but more importantly, that would likely subject the entire page to records disclosure because they are using that page to disseminate information related to their job.

The importance here is the nature of the communication. In State v City of Clearwater, the Florida Supreme Court ruled that not all emails are public record, even if stored on government servers.

The Second District concluded that “private” or “personal” e-mails fall outside the current definition of public records because they are neither “made or received pursuant to law or ordinance” nor “created or received ‘in connection with official business' of the City or ‘in connection with the transaction of official business' by the City.”

The takeaway here is that a public record is created if it is done in connection with official business... in this case the role of county commissioner.

Taking a look at their pages, every single one of them posts things related to their jobs as commissioners. All of those things would create a public record, which means the comments, messages, etc to the page on those things or other "official business" are to be archived by the individual.

Can a commissioner delete a comment they do not like or ban people from their pages? Nope.

Lindke v Freed solidified that. It is considered viewpoint discrimination and a violation of the First Amendment according to the Supreme Court. This also came up when President Trump blocked people from his then Twitter account. This was Knight v Trump, in which the Second Circuit ruled that social media pages of elected officials are considered public forums, however, the Supreme Court tossed this case since Trump lost re-election and Twitter removed his account. Since he was no longer an elected official, it did not matter if he blocked anyone.

So the takeaway... county commissioners cannot block, delete, hide, etc comments, messages, and so on from their pages that are "created or received ‘in connection with official business."

How does this apply to candidates? The argument I saw online last night was that Bays' page was really a campaign page and not a commissioner page, despite it being labeled as such.

The argument then is that a campaign page is sharing campaign related events and not "official" acts. However, Florida law sees it different. Here is a quote from the 2025 Government in the Sunshine Manual. This is a great resource for those wishing to learn more about government transparency.

The Sunshine Law does not apply to candidates for office, unless the candidate is an incumbent seeking reelection. AGO 92-05.

Generally speaking, a candidate for public office would not be subject to public records laws. Take the other 3 candidates running for county commission. They are not subject to public records because they are not government officials. Stacey Worthington would be subject to records disclosure for things related to her time on the PDC between 2021 and 2024 because that is a government function. However, for things today, she is not.

Finegan and Bays are incumbents. They would be subject to records, EVEN if it were on a campaign page. Further, the argument can be made that touting their accomplishments on a campaign page is communicating official business in their role as commissioner... and any comments, messages, etc to those points are considered public record.

So yes... campaign accounts of incumbents are subject to records laws and records preservation. That means every single comment on those posts would need to be archived. If a member of the public makes a comment and then deletes it for whatever reason... and that comment is in relation to their jobs... the commissioner would be required to archive that comment and produce it upon request. Not doing so is technically a public records violation.

Willing to take a bet on how many commissioners archive every comment made on their pages... I am going with ZERO. To that point, I would be willing to bet the County does not do this either.

I get it. The job is tough. There are many laws and things they have to remember... but that does not excuse them for not knowing them. They chose to do this job, it is their responsibility to ensure that their social media pages are following the law, as required. The "I didnt know" is not an excuse.

That is enough for today. I will be back later this week or next week talking about specific issues that have come up with some of these accounts. Stay tuned! Have a great Wednesday!