State considering FOIA rules for social media posts

LANSING, Mich. (AP) — The state plans to consider what its employees and agencies post on social media websites as matters of public record and subject to Freedom of Information Act requests.

Michigan is working to finalize a policy that is expected to be completed in August, Kurt Weiss, a spokesman for the state’s Department of Technology, Management and Budget, told the Lansing State Journal for a story published Sunday.

“What the state realizes is like other states, younger generations are getting their messages in other ways, be it Facebook or Twitter,” he said. “So when the state has important information to share, that’s an important avenue we have to look at.”

Lawyer Herschel Fink, who specializes in media law, said it appears the concept is untested in Michigan courts. He said he thinks such activity by government should be considered public record.

“If government and officials are communicating on issues of government policy, using these new means of communication — social media — then the public has to have access to that as well,” he said.

Michigan uses social media websites such as Facebook and Twitter to communicate with the public.

“The whole idea behind FOIA is providing the public with information about all aspects of the people’s business,” Fink said.

How to treat posts by individual officials could stir debate. A Facebook page for a mayor, for example, would be subject to FOIA, Fink said, while that mayor’s personal Facebook page might not. Officials who mix personal and government postings on the same page might be subject to FOIA.

“You cannot blur the line,” he said. “If you use it in any way to communicate as a public official with constituents, you’ve given up any right of privacy.”

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In their opinions

“[I]f there ever was an area in which … disinfectant is the most needed, it is in the conducting of elections.”

Court of Appeals Judge William C. Whitbeck, writing for the majority in Practical Political Consulting v. Land.

“[M]any voters may wish to avoid the perceived annoyance and hassle of receiving large amounts of junk mail and solicitations that would result from the disclosure of their particular political convictions.”

Court of Appeals Judge Kirsten Frank Kelly, dissenting.

Whitbeck and Kelly were discussing the competing rationales for and against Freedom of Information Act disclosure of voters’ names, addresses and the political parties’ ballot the voters requested in the 2008 presidential primary.

Joined by Judge Stephen L. Borrello, Whitbeck prevailed on his view that disclosure was necessary to make sure that election officials had complied with a now-unconstitutional statute.

The law required the Secretary of State and other election officials to collect voter information in the 2008 primary and supply it exclusively to the state’s two major political parties.

A political consulting company made a FOIA request for the same information and prevailed in last week’s split-panel decision.

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“[A] defendant’s perjury at trial is not exceptional. If it were, ‘a departure might be warranted every time a defendant testified and was found guilty.'”

Court of Appeals Judges Joel P. Hoekstra, Cynthia Diana Stephens and Michael J. Kelly, in the unpublished per curiam decision of People v. Baker, quoting People v. Kahley, 277 Mich. App. 182 (2007).

The panel explained that a defendant’s admitted perjury is not reason enough to exceed the sentencing guidelines.

However, in this case, the trial court found that the defendant was a pedophile. The Baker panel said that was a great reason to ignore the guideline’s 9- to 15-year recommendation instead impose a 25- to 75-year sentence.