WASHINGTON — Hawaii is “definitely ahead” of other states in its efforts to develop open records policies for social media usage, according to the Virginia-based government watchdog nonprofit Sunshine Review.

But advocates for open government would also like to see Hawaii take its approach to social media and public records farther than the state Office of Information Practices (OIP) is proposing — and farther than some lawmakers may be willing to go.

State Sen. Will Espero, who is active on sites like Facebook and Twitter, says he and his colleagues will have to be “very careful” in legislating officials’ social media usage. On Thursday, the Senate Judiciary and Labor Committee will hear Senate Bill 2859, which is aimed at updating Hawaii’s 23-year-old public records law to incorporate new technologies. The OIP-introduced measure’s companion in the House is House Bill 2597.

“Overall very little has been done to set policy at a state level,” said Joshua Meyer-Gutbrod, director of Sunshine Review’s WikiFOIA project. “There’s ambiguity as to what local agencies or state agencies are allowed to do. People need to sit down and clarify it… If they’re tackling social media (in Hawaii), they’re definitely ahead of other states.”

OIP Director Cheryl Kakazu Park said her office looked to other states for models in developing a proposal in Hawaii, but “really couldn’t find any uniformity.” One exception is Florida, a state that has been grappling with how to incorporate social media into open records laws for years.

“But there isn’t a national model, so there’s nothing much out there for us to follow,” Park told Civil Beat. “So just catering to our needs, we looked at the potential problems that the sunshine law might create for people who might want to use social media. We had to just look at our law and determine what it is we need to do to promote public participation while allowing for transparency while also allowing government to move forward and do its work.”

What Park and her team came up with was language that treats websites such as Facebook and Twitter like virtual town halls. For example, the measures would allow members of boards and commissions to discuss official business on Facebook as long as the following conditions can be met:

  • The discussion may not be among a number of board or commission members that constitutes a quorum
  • No commitment to vote is made or sought
  • The online discussion is accessible at any time to any member of the public with an Internet connection
  • Interested members of the public are able to participate
  • The discussion can be viewed publicly for a “reasonable period of time” on the site
  • The board will provide a list of all board members using social media sites, as well as related links or handles, to anyone who asks

OIP defines “social media website” as a site that “facilitates social interaction among unlimited numbers of persons for the purposes of friendship, meeting other persons or information exchanges, and allows persons using the website to communicate with other users.”

“We’re just trying to take away the sunshine law as an automatic impediment to the use of social media,” Park said. “When I explain it to the lawmakers they understand the rational behind it, but it’s not like they’re all going to jump on the social media bandwagon.”

Casual Conversation or Government Document?

Many Hawaii officials are familiar faces online. Former Honolulu Mayor Mufi Hannemann embraced social media as a way to connect with people when he was at the helm of the city. Now running for Congress, Hannemann told Civil Beat that he “love(s) using Twitter and Facebook.”

“I was one of the first Hawaii public officials to use these sites starting with Facebook in the summer of 2008, and Twitter in early 2009,” Hannemann said. “These social media sites allow me to interact with so many people from across the state, nation, and world, and provide me with some insight into what topics and issues matter the most to them. They also allow me to share personal, professional and political news much more quickly than ever before.”

Hannemann is also able to reach a staggering number of people. On Twitter, he has more than 549,200 followers, or people who have opted to subscribe to Hannemann’s updates.

Espero is also active online, with a network of 4,483 Facebook friends. He routinely posts questions for constituents about state business. One recent example drew dozens of replies:

Espero, who told Civil Beat that he used to rely on email and newsletters to communicate with Hawaii residents, calls sites like Facebook and Twitter hugely valuable for him in his capacity as a senator. (In fact, Civil Beat arranged a phone interview with Espero by first sending him a message via Facebook.)

“Before, with email, everything was in black and white,” Espero said. “Now it’s like everything’s in color. Facebook is almost like a town hall meeting but with a diverse group of people from different locations. In other words, it’s not just Ewa Beach. I’m getting input from Ewa Beach, Kaimuki, the neighbor islands and even friends from the mainland now and then. You get a much more diverse and expanded communication, and that’s very good in my opinion.”

But Espero is uneasy about legislating the use of social media, though he says having a discussion about it will be worthwhile.

“The state has to look at this cautiously because Facebook and Twitter are private businesses, and there are free speech issues here,” Espero said. “We need to look carefully before we start legislating certain things about quorum because this is really a tool to communicate.”

While Espero looks at social media sites as privately operated platforms that enable him to engage with friends and constituents, WikiFOIA’s Meyer-Gutbrod says that officials who use the sites are actually creating government documents that should be preserved and accessible to the public.

By Meyer-Gutbrod’s definition, Espero’s Facebook wall — the forum on his profile page where discussions take place — is a government document if he is using it in his or her official capacity.

“I firmly believe that it is a record, a government document,” Meyer-Gutbrod said. “It’s text on a page. It can be saved. It can be preserved. It’s important to keep track of that not only for your citizens but also for historical purposes. If somebody says something important, and six months down the road, Facebook has deleted it, you’ll regret not having it.”

Espero disagrees.

“At this stage, I don’t see it as a government document,” Espero said. “If I write something, those are my thoughts. Whether they’re my thoughts as Will Espero private citizen or Will Espero state senator, those are still my thoughts. In terms of archiving, again I think we have to look at this real carefully. Facebook is a private enterprise of which I’m a member, just like I’m a member of Rotary Club or Lions Club. The only difference is one has to do with technology and the other is face-to-face at a meeting.”

To complicate matters, communication via sites like Facebook and Twitter are sometimes replacing email at a time when public officials are still debating which emails constitute public records.

“All the things that BlackBerrys and iPhones can do that would allow you to, for example, sit in a public meeting and discuss something with a group of eight other public officials while you’re sitting there but not saying a word, these new resources just didn’t exist five years ago,” Meyer-Gutbrod said. “That whole realm, all the way down to email, is still being debated and discussed.”

Even if a Facebook wall is considered a government document — or at least a virtual government town hall — then what about private one-on-one Facebook messages? Meyer-Gutbrod says they should be treated like email in that if government business is being discussed, the messages become government documents.

OIP’s Park says that interpretation may go too far.

“It’s not a government record because Facebook is the one that controls those messages,” Park said. “You’d have to get the messages from Facebook. But if (the government official) downloaded that page and put it in their files on their computer, then it becomes a government record. The thing up in the clouds, that’s out of our control.”

Put It On The Books

While Meyer-Gutbrod advocates for government officials to share and archive all of the contents of their Facebook pages and Twitter feeds, he said the first step is acknowledging that social media must be included in open records laws.

“The most important thing you can do right now is get a policy on the books,” Meyer-Gutbrod said. “The ambiguity that’s floating around is going to result in abuse of the law, if anything because people don’t understand that this is a record that should be preserved.

“You’ve got this great resource to communicate with your citizens, and that’s a really big part of open records, opening up those lines of communication. The key is just to carefully regulate what gets said on there —  whether it’s a Twitter feed or a Facebook wall — and back it up every two days, every day or every few hours if you get a lot of traffic.”

At the city level, Honolulu officials are relying on Twitter and Facebook to do the archiving for them.

One Twitter account that Hannemann used as mayor is now in the hands of his successor. Hannemann began tweeting using the handle @hnl_mayor in November 2009, and Honolulu Mayor Peter Carlisle assumed control of the account in October 2010, according to Honolulu Department of Information Technology Director Gordon Bruce.

“So you can assume all previous tweets represent the Hannemann administration,” Bruce told Civil Beat in an email. “We do not archive or back up any of this.”

Bruce said the city does not archive any information from its presence on Facebook, which “does not throw away any data.”

OIP’s proposed legislation would not require officials to begin doing so, which means the measures don’t go as far as Meyer-Gutbrod would hope. OIP’s Park said her first goal is to clarify social media use for those officials who might be avoiding sites because they don’t want to do something wrong.

“Why not promote the use of (these sites)?” Park said. “It’s getting the word out to more people, increasing not only transparency but participation.”

As with all technologies, there are limitations.

“How can you even have a full discussion on Twitter?” Park said. “You’re only limited to so many characters.”

About the Author