May 2, 2016

Judge: Public officials’ Facebook subject to IPRA

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Public officials’ Facebook pages are subject to the state’s open records law, a district court judge ruled last week.

District Judge Jerry H. Ritter Jr. ruled that the City of Alamogordo violated the state Inspection of Public Records Act over a request by Wendy Irby, according to the Alamogordo Daily News. The city did not hand over relevant documents—and actually said they did not have access to the documents.

This appears to be a first in New Mexico, according to Susan Boe, the executive director of the New Mexico Foundation for Open Government.

“The Facebook issue hasn’t really come up here in New Mexico, but it has in other states,” she told NM Political Report on Monday.

IPRA relates to all public records. Private conversations and records not about public business are not subject to IPRA.

So it would not allow someone to request private conversations between a public official and his or her spouse.

“Those don’t pertain to public business,” Boe explained.

In Alamogordo, Irby requested to look at public records included on the mayor’s Facebook page. The city denied the request because the mayor did not start the page “on behalf of” the city according to the judge’s summary ruling.

The city also argued that a Facebook is not a public records because it wasn’t “used, created, received, maintained or held by or on behalf of” the city of Alamogordo. Susie Galea, the former mayor of Alamogordo, said she was not the records custodian.

The judge noted that IPRA does not mention what form a record comes in.

The judge also said in the ruling that it did not matter that the Facebook page was not created by or on behalf of the city.

“The fact that the City Commission did not, as a group, instigate or later ratify the creation of the Mayor’s Facebook page does not prevent it being ‘used’ by the City Commission to the extent that the Mayor receives information which she incorporates into commission discussion and decision, or to the extent that she disseminates information or opinion with the intent to generate public support for particular actions of the commission,” the judge wrote. “Either circumstance could create a basis to bring the document within the scope of the Inspection of Public Records Act.”

The judge also rejected arguments by the former mayor and the city that they did not have access to the Facebook page, noting this would “substitute a shell game for the right of the public to be aware of the actions of its public officials.”

“The technology’s going to catch up with these issues too,” Boe said, referring to social media and text messaging.

Right now, Boe said, the public has to rely on public officials to turn over the documents to the public.

  Wendy Irby v. City of Alamogordo via Alamogordo Daily-News