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HomeMy WebLinkAbout2015 08 24 Document Provided by Commissioner Hovey During ReportsDate: August 24, 2015 These documents were provided to the City Commission by Commissioner Jean Hovey during her "Report" at the August 24, 2015 City Commission Regular Meeting. 8/24/2015 7 things to know about today, plus Facebook now top source for news links - Orlando Business Journal From the Orlando Business Journal httv •-thinqs-to-knoi iournals.com/oriando/morninci call/2015/08/ about-today-plus-facebook-now-top.htmI I .5- 7 things to know about Loday, plus Facebook now tor% source for news links V Aug 20, 2015, 6:57am EDT Cindy Barth Editor- Orlando Business Journal Email I Twitter Facebook Inc., is bringing more traffic to news sites than Goo_ le Inc., new data from Web traffic analytics firm Parse.ly shows. Social media referrals (Facebook is the biggest social network) accounted for 43 percent of the traffic to the Parse.ly network of media sites — 400 major news and media outlets that account for 6 billion page views including Wired, The Atlantic, Reuters, Mashable, Slate, Business Insider and others, according to the data first provided to Fortune. Facebook alone accounts for just under 40 percent of the referrals. Google accounted for 38 percent of the digital traffic in the May -July 2015 data, Parse.ly chief technical officer Andrew Montalenti told Fortune. Read more here. And be sure to check out these other Thursday headlines: In case you missed this yesterday, the four Florida Business Journals unveiled the 2015 Florida Fast 100 companies, privately held companies that showed the greatest revenue percentage increase between 2012-2014. Central Florida put 28 companies on the 2015 list. Check out the companies here. As for where the Central Florida companies ranked on this year's list ... you'll have to wait for the Sept. 18 edition of OB3. F IFFIX FIFIR WEIR 111111 1111111 1� 11111111 Congratulations to Michael Dosal, who was named head of Chase's middle -market commercial banking business in Tampa Bay. After joining JP organ Chase (NYSE: JPM) in 2009, Dosal established the commercial banking team in Orlando, creating a group of six bankers and numerous support staff. Two years later, he established the team's presence in Jacksonville, a hftp://www.bizjournals.com/oriandolmorning_�aall/2015/0817-things-to-know-aboLd-today-plus-facebook-naw-top.htmi?s=print 1/3 8/24/2015 Facebook trumps Google as source for news links - Silicon Valley Business Journal SiliconFrom the • Faceb%ook now leads Goommle as go -to source for news links 1 • • 2015,1:08prn PDT t Angela Swartz Tech reporter- Silicon Valley Business Journal Email Facebook Inc., is bringing more traffic to news sites than Google Inc., new data from web traffic analytics firm Parse.IX shows. Social media referrals (Facebook is the biggest social network) accounted for 43 percent of the traffic to the Parse.ly network of media sites — 400 major news and media outlets that account for 6 billion page views including Wired, The Atlantic, Reuters, Mashable, Slate, Business Insider and others, according to the data first provided to Fortune. Facebook alone accounts for just under 40 percent of the referrals. See Also • Facebook developing Twitter -like news app • Alphabet soup: What does the restructuring of Google mean? • Why Facebook watchers are still optimistic about its potential Google accounted for 38 percent of the digital traffic in the May -July 2015 data, Parse.ly chief technical officer Andrew Montalenti told Fortune. The Menlo Park -based social network began edging out Google for traffic referrals in October, but this is the most dramatic lead yet, the report states. In 3anuary, Facebook accounted for just 20 percent of all traffic to these sites. In spring of 2012, Google accounted for about 40 percent of referrals, while Facebook hovered at 10 percent. This Parse.ly report comes just days after Business Insider broke news that Facebook appears to be working on a Twitter -like news app as part of a mobile news shift. The stand-alone http:ltwww.bizjournals.com/sanjosennews/2Ol5tO8ll91facebook-now-leads-google-as-go-to-source-for-news.html?s=print 1/2 8/24/2015 Facebook trumps Google as source for news links - Silicon Valley Business Journal mobile news app as part of the Facebook for Business initiative, according to screenshots of the new product obtained by Business Insider and an unnamed source who spoke with the publication. Other reports show Facebook is doing a great job of directing traffic. A January report from social management firm Shareaholic showed Facebook accounted for a quarter of web traffic to Shareaholic"s network of sites. Yahoo Inc., and Twitter Inc., also accounted for the third and fourth most referrals to the network of media sites, according to the data. The two direct a little less than 5 percent of referrals each. The change in Google's referral practices for publishers may account for some of this shift, Parse.ly told Fortune. Google no longer allows publishers to see what keywords were used to direct the most traffic to their content. hftp:lAwww.bizjournals,comlsanjosetrewsl2Ol5lO8ll9lfacebook-now-leads-google-as-go-to-source-for-news.html?s=print 212 Are You Ready for Social Networking? From Facebook to Florida Law Presented by Audrey E. Vance, City Attorney City of Bonita Springs August 13, 2015 The 89th Annual Conference of the Florida League of Cities Orlando World Center Marriott Hotel M- Social Networking and the Public Records Law: A review of the Sunshine Law and its application to the use of Facebook, Twitter and related social media services and Web sites by.9i.4 send city officials, it U:\City AttorneyTower Point\2015 Social Media FLC (FMAA).,,c Page 1 of 12 Introduction Local government lawyers are familiar with roads and highways, until we travel to the most difficult path, the Internet Highway. Most likely your City Attorney is aware of the legal concerns for the various paths, but since social media can be used by municipalities in a variety of ways, answering all of your legal concerns is responding to a moving target, which makes it difficult to assume any facts, such as how your municipality is using social media. The objective of this presentation is to explain why it is difficult, and hopefully, provide a few recommendations as each city embarks on their own specific journey. I would like to preface my comments that what I am explaining today are my own opinions and do not necessarily represent the opinions of the City of Bonita Springs. 1. Public Records Law a. The Florida Constitution and Florida Statutes embrace open public records, meaning that unless there is an exemption for a record that was kept or created by a government, this record must be available to a person making such a request. b. The definition for a public record is found in Florida Statutes §119.011 (12): "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardlessofthe physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. c. However: Just because it is in writing does not automatically make it a public record; AND d. Just because it is not in writing does not automatically mean it is not a public record. e. This may sound confusing, but it does not matter in what form the media is transmitted (paper or digital), but it does matter whether the item was made or received pursuant to law or ordinance or in connection with the transaction of official business. Key Cases of Sociai Media and Public Records: UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 2 of 12 a. First case in Florida addressing use of computers and public records was Seigle v. Barry, 422 So.2d 63 (Fla. 4tl' DCA 1982). In it, the Court was compelled to describe a computer: A computer is an electronic device consisting of a finite number of on -off switches having the capability of storing vast amounts of information fed into it in a random fashion and is referred to in computer jargon as hardware. A computer program, known as software, is a means of retrieving that information in a specified format and at high speed. When a program is run, the computer produces the information in printed form termed a computer print-out. The court then goes on to explain that "there can be no doubt that information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet." ... "When confronted with computerized records we are asked to apply a different rule.... within reasonable bounds information in a computer should be accessible through a program designed for a particular output format." The case then explains that "information in a computer is analogous to information recorded in code. Where a public record is maintained in such a manner that it can only be interpreted by the use of a code then the code book must be furnished to the applicant." Even in 1982, the court recognized that: The adversaries are not always David and Goliath or the embattled taxpayer against the omnipotent bureaucracy. There will be those with an ax to grind, a personal grudge or some other single interest to advance, making their demands for access to public records. In such cases access remains mandated by law as well as by sound public policy. An absolute rule permitting access to computerized records by a specially designed program could well result in a tremendous expenditure of time and effort for the mere sake of translating information readily and inexpensively available in one format into another format more suitable to the applicant's particular purposes. Simply requiring that the applicant pay the direct costs involved in the process does not recoup the wasted time or complete the other tasks that could have been accomplished but for the special project. It is not the intent of the law to put public officials in the business of compiling charts and preparing documentary evidence. The intent is rather to make available to the public information which is a matter of UACity Attorney\Power Point\201 5 Social Media FLC (FMAA),doc Page 3 of 12 public record, in some meaningful form, not necessarily that which the applicant prefers. We, therefore, adopt the rule that access to computerized records shall be given through the use of programs currently in use by the public official responsible for maintaining the public records. b. Another important case is the conclusion of litigation surrounding e- mails. State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003) is the Florida Supreme Court concluding that "personal" a -mails are not "made or received pursuant to law or ordinance or in connection with the transaction of official business" and, therefore, do not fall within the definition of public records in section 119.011(1) by virtue of their placement on a government -owned computer system. As explained by the Supreme Court, in evaluating what is a public record, "the determining factor is the nature of the record, not its physical location." c. Quiz Time 1: Councilmember Joy loves to write, and is very good at it. So good, that she writes her position for the local newspaper. Joy knows that many of her friends and constituents do not get the local paper, so in the middle of night, at home and on her personal computer, she posts them on her Facebook, invites friends to read her posts, and even tweets that they are now available on her Facebook page. The articles have links to the City's website with last year's State of the City Address and to the City Attorney's memorandum on social media. Citizen Kane makes a public records request to the City for Joy's email list. Question: Does the City need to produce the email list on who got information about Councilmember Joy's postings? UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 4 of 12 Answer: No, per Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 41h DCA 2011) because the email in question (changed here to a tweet and a posting on Facebook) was sent by Mayor Joy Cooper from her personal email account, using her personal computer, and was blind copied to friends and supporters. The trial court and appellate court both found that: The City played no role in the Mayor's decision to write articles for the Times; no role in identifying the topics about which Cooper chose to write and exercised no control over the content of the articles. The City played no role in Cooper's decision to distribute or not to distribute her Times articles, or the means by which she chose to do so. The City played no role in deciding to whom Cooper chose to distribute the copies of her articles; Cooper herself decided to distribute the articles to select personal friends and supporters at her own discretion. The email that Cooper sent was not intended to perpetuate, communicate, or formalize the City's business; it was simply to provide a copy of the articles to Cooper's friends and supporters. The email was not made pursuant to law or in connection with the transaction of official business by the City, or Cooper in her capacity as Mayor.... The articles had been previously published where anyone could inspect or copy them and the email forwarding copies of the articles was not prepared in connection with the official business of the Mayor or the City. d. But, remember, while we are concerned about the nature of the record and not its physical location, it is important to be able to examine the record to determine if it is a public record. We may remember Lorenzo v. City of Venice, which did not go up on appeal, but where the City of Venice was ordered to pay $755,458.42, plus pre -judgment interest, in attorneys fees, because of current and former city officials conducting official city business over their personal emails. These officials also had the pleasure of having the State Attorney's office confiscate their personal computer. Given that I have had a councilmember also have their personal computer seized because of allegations, it is not pleasant. e. In Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA 2007), a commissioner created memos to the file to formalize and perpetuate the Commissioner's final knowledge gained at meetings. The subject document was not a draft, or a note containing mental impressions that would later form a part of a government record. Court found it a public record because such a document would "supply the final evidence of knowledge obtained in connection with the transaction of official business. Hence, the document in question, which contains no mental impression, but merely recites information iterated at the meeting, is just such a memorandum to the file." UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 5 of 12 f. Bottom Line: a, No cases as to social media and public records in Florida. b. If it is on a City computer, it is a public record if it is for the purpose of transaction of business. c. If City played no role in speech and it was not in connection with the transaction of official business by the City, or as elected official, by Florida law, it does not need to be kept by City; BUT d. If in doubt or just because there are prolific public records requestor's seeking attorney fees for wrongdoers and you want to protect both your reputation and the city coffers, the better practice is to place the item (post, tweet, email, etc.) on the City's server so it can be found by your IT department later if there is a question whether it is a public record and whether it is in the hands of the custodian. e. Finally, we receive unpleasant emails all the time about city business. We have no control of what is sent to us and on which computer, but we only have control of our own actions. Even if you do not respond to the sender of the post, tweet or email, please forward to the custodian of your City's server so they can produce the record if needed. U:\City AttorneyTower Point\2015 Social Media FLC (FMAA).doc Page 6 of 12 2. Records Retention Law a. Public Records are placed on a retention schedule by the Department of State, Division of Library and Information Services, pursuant to Florida Statutes §257.36. b. The time a local government has to maintain the record is governed by the General Records Schedule GS1-SL for State and Local Government Agencies. In 2013, the Division changed from email policy to electronic communication policy. c. ELECTRONIC COMMUNICATIONS There is no single retention period that applies to all electronic messages or communications, whether they are sent by email, instant messaging, text messaging (such as SMS, Blackberry PIN, etc), multimedia messaging (such as MMS), chat messaging, social networking (such as Facebook, Twitter, etc.), voice mail/voice messaging (whether in audio, voice-over-internet protocol, or other format), or any other current or future electronic messaging technology or device. Retention periods are determined by the content, nature, and purpose of records, and are set based on their legal, fiscal, administrative, and historical values, regardless of the format in which they reside or the method by which they are transmitted. Electronic communications, as with records in other formats, can have a variety of purposes and relate to a variety of program functions and activities. The retention of any particular electronic message will generally be the same as the retention for records in any other format that document the same program function or activity. For instance, electronic communications might fall under a CORRESPONDENCE series, a BUDGET RECORDS series, or one of numerous other series, depending on the content, nature, and purpose of each message. Electronic communications that are created primarily to communicate information of short-term value, such as messages reminding employees about scheduled meetings or appointments, or most voice mail messages, might fall under the "TRANSITORY MESSAGES" series. d. When can the City "unfriend" a former employee or outdated social media site? The only retention record specific to social media: GS1-SL411 Social Media Account Authorization Records Description: This record series documents employee administrative access rights to an official agency account on a social media site including, but not limited to, Facebook, Twitter, YouTube, or an agency blog. Social media account authorizations allow authorized employees to create and maintain a specified account and content for that account. The series may include, but is not limited to, social media account information, authorization records, access rights records, and other related records. UACity AttorneyTower PoinA2015 Social Media FLC (FMAA).doc Page 7 of 12 Retention: 1 anniversary year after superseded or employee separates from employment. e. Transitory: "Transitory" refers to short-term value based upon the content and purpose of the message, not the format or technology used to transmit it. Examples of transitory messages include, but are not limited to, reminders to employees about scheduled meetings or appointments; most telephone messages (whether in paper, voice mail, or other electronic form); announcements of office events such as holiday parties or group lunches; and recipient copies of announcements of agency sponsored events such as exhibits, lectures, workshops, etc. Transitory messages are not intended to formalize or perpetuate knowledge and do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt. RETENTION: Retain until obsolete, superseded, or administrative value is lost. f. Another important term is when a document is "OSK. As explained in the General Records Schedule GS1-SL for State and Local Government Agencies: The records retention schedule establishes officially the minimum length of time that the record series must be retained. This retention applies to the agency's record (master) copy of the records, those public records specifically designated by the custodian as the official record. The retention period for duplicates — copies of records that are not the official record of an agency — is always "Retain until obsolete, superseded, or administrative value is lost" ("OSK) unless otherwise specified. Therefore, we are no longer including the OSA retention statement for duplicates in each retention item. • :• 1. Clerk should be well acquainted with the GS1-SL Records Retention Policy, and work with the City Manager and staff to figure out the best way for record storage, retrieval and disposal. 2. How long it must be maintained by an agency depends on what is its content, nature, and purpose of records, and are set based on their legal, fiscal, administrative, and historical values. 3. The master copy of the agency's record is necessary to maintain, but your City does not need to keep individual copies if the item is a duplicate, such as a record of an email or tweet. UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 8 of 12 3. Sunshine Law a. The responsibility of the public records law is generally with the agency, i.e., if the elected official provides the record to the agency, who retains it in accordance with the General Records Schedule GS1- SL for State and Local Government Agencies, for the most part, there is no other duty on the part of the elected official. b. With the Sunshine Law, you have the continuing duty to comply with the Sunshine Law. About twenty years ago, I had difficulty explaining to a particular advisory board that their communication by emails could be construed as a Sunshine law violation, even if they turned them into the agency. Why? Because they were holding a meeting that not everyone can attend. c. Like public records, the Florida Constitution and Florida Statutes embrace the Sunshine law, meaning that unless there is a limited exception, members of the same board, council or commission must refrain from discussing the public business among themselves unless those discussions are of record in a duly called and noticed meeting d. The Sunshine Law is found in Chapter 286, Florida Statutes, and in particular, Florida Statutes §286.011 declares: All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings. e. Disclaimer: This presentation assumes a working knowledge of the Sunshine law AND is limited to social media. The discussion of Sunshine Law and its nuances could outlast the time allotted. f. Why Social Media and the Sunshine Law is so difficult (or as the first Mayor of Bonita Springs would say after a particularly confusing answer by me, with me not knowing the Rodney Dangerfield quote in Caddyshack, "now I know why tigers eat their young"): 1. Mayor: Can I post on Facebook my thoughts on a particular issue? U:NCity AttorneyTower PDint\2015 Social Media FLC (FMAA).doc Page 9 of 12 Lawyer: Yes, except if it is in response to another member of the Council's position or if there is conduit communication. 2. Mayor: Hmmm. What is a conduit communication? Lawyer: When a person or in this case, a system such as the Facebook page, is used by a member of the council or the council itself as its or his or her agent or intermediary to circulate or collect and convey the information and thoughts of such member or members to the governing board in order to circumvent or evade the Sunshine Law. 3. Mayor: So these conduit communications are not allowed. Are there any exceptions to conduit communication? Lawyer: The Attorney General in 1981 (AGO 81-42) opined that it is not a violation of the Sunshine Law, for a news reporter to convey statements of voting intent on a particular matter made to him by a Council member to another Council member in advance of a scheduled public hearing on the particular matter so long as the news reporter is not being designedly appointed and used by a member of the council or the council itself. 4. Mayor: So I can talk to a news reporter? Lawyer: Yes, as stated in AGO 81-42: In the same vein, it is not a violation of the Sunshine Law for a member of the governing body to express his views or voting intent on an upcoming matter to a news reporter who the member knows will probably publish the same in a local newspaper prior to the scheduled public hearing so long as the news reporter is not being designedly appointed and used by the member or any other member of the council as an intermediary in order to circumvent or evade the public meeting requirements of the Sunshine Law. 5. Mayor: Didn't you tell me there was some cases recently about bloggers? Lawyer: Why Mayor, you have a good memory. Blogs and bloggers can fill the role as news media for purposes of pre -suit letter for slander actions, and courts look to whether whether the defendant engages in the traditional function of the news media, which is to initiate uninhibited, robust, and wide-open debate on public issues. The case I think you remember is Comins v. VanVoorhis, 135 So. 3d 545 (Fla. 5th DCA 2014), holding that: UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 10 of 12 Blogs and bloggers can fill such a role, pointing out that "media defendants are not just those who "impartially disseminate information," or "issue unsolicited, disinterested and neutral commentary as to matters of public interest." Ortega Trujillo, 17 F.Supp.2d at 1338. The term also applies to those who "editorialize as to matters of public interest without being commissioned to do so by [their] clients." Id. In June, the Florida 5th DCA decided another case where an internet publisher of scientific and technical journals published an article by an OF employee, and it was also determined to come under the journalism exception. Plant Food Systems, Inc. v. Irey, No. 5D14-3138, 2015 WL 3793499 (Fla. 5th DCA June 19, 2015) 6. Mayor: Can I apply that AGO exception as to conduit to any communication I have to websites or bloggers? Lawyer: The Attorney General has stated the opposite, in that the Sunshine Law does apply with blogs and social media sites. I know this is confusing, but remember, the case law on bloggers relate to defamation notice requirements, and not the Sunshine Law, in which exceptions are supposed to be narrowly construed and meet all formalities. g. Attorney General Opinions as to Facebook and Social Media Sites 1. AGO 01-20: An e-mail communication of factual background information from one city council member to other council members that does not result in the exchange of council members' comments or responses on subjects requiring council action does not constitute a meeting subject to the Government in the Sunshine Law. 2. AGO 07-35: Council members could exchange documents that they wish other members of the commission to consider on matters coming before the commission for official action, provided there is no response from, or interaction related to such documents among, the commissioners prior to the public meeting. BUT, AGO 01-21 if distribution of individual position statements on the same subject by several city council members to all other council members would violate the Sunshine Law to the extent that any such communication is a response to another council member's statement. 3. AGO 08-07: A city council member creates and posts comments on a non -city maintained website. Subsequent postings by other council members on the subject of the initial posting could be UACity Attorney\Power Point\2015 Social Media FLC (FMAA).doc Page 11 of 12 construed as a response which would violate the Sunshine Law. As stated: While there is no statutory prohibition against a city council member posting comments on a privately maintained electronic bulletin board or blog, nor is there any statutory proscription against a city council member serving as the webmaster of such a site, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action. The use of such an electronic means of posting one's comments and the inherent availability of other participants or contributors to act as liaisons would create an environment that could easily become a forum for members of a board or commission to discuss official issues which should most appropriately be conducted at a public meeting in compliance with the Government in the Sunshine Law. 4. AGO 09-19: Creation of a city Facebook page must be for a municipal, not private purpose. Communications on the city's Facebook page regarding city business by city commissioners may be subject to Florida's Government in the Sunshine Law. Members of a city board or commission must not engage on the city's Facebook page in an exchange or discussion of matters that foreseeably will come before the board or commission for official action. 5. Informal dated January 22, 2009, City council can express how they will vote to the press, as long as it is not evading the Sunshine Law (conduit). City cannot write an ordinance prohibiting council from posting on websites their voting intent since it could violate the elected official's constitutional guarantees as to first amendment rights. Any law that is a "curtailment of First Amendment freedoms" must have a compelling state interest, be able to satisfy strict scrutiny and cannot unconstitutionally abridge the rights to speak, publish, and petition government." 7. Internet meetings. Prior to the advent of the computer, the AGO has looked at whether meetings could be held via the latest technology, the telephone. AGO has opined the need of having a physical quorum, and if that is reached, a member could participate electronically (Skype, phone, VOIP, etc.). Primary concern is that members of the public also need access to the meetings through electronic means. UACity Attorney\Power Point\2015 Social Media FLC (FMAA),dor Page 12 of 12