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
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7 things to know about Loday, plus
Facebook now tor% source for news links
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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.
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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
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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
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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
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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:
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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?
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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."
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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.
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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.
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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?
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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:
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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
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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.
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