Are Facebook and Twitter accounts subject to disclosure under the Texas Public Information Act?

Social media has become “the modern public square,” in the words of the U.S. Supreme Court. Facebook, Twitter, and other platforms are a cost-effective and efficient way for governments to communicate with the public, and they allow regular people to engage directly with lawmakers, officials, and government entities themselves. A few government accounts are even funny (we recommend @txcomptroller, @USPSC, and @NJGov).

Of course, social media has its pitfalls. Former President Trump was sued in 2019 by the Knight First Amendment Institute for blocking his critics on Twitter. And Texans might remember that former Texas Supreme Court Justice Don Willett (our “Tweeter Laureate”) had to defend controversial tweets at his 2017 confirmation hearing for a seat on the 5th Circuit.

As more governmental bodies, officials, and employees establish online presences, a question has arisen—what social media information is subject to the public disclosure requirements of the Texas Public Information Act (TPIA)?

All social media information, including comments, direct messages, and blocked accounts, can be requested under the TPIA. But whether a governmental body is required to actually release the requested information to the public depends on whether the information is considered the governmental body’s “official business.”

Information relating to a governmental body’s “official” accounts

Information relating to a governmental body’s official accounts—e.g., the governor’s office’s Twitter account, the lieutenant governor’s office’s Twitter account, or a city’s social media pages—is “public information” under the TPIA, because those accounts are maintained by or for the governmental body or official “in connection with the transaction of official business.” However, the government can still withhold the requested information if it is subject to an exception under the TPIA.

For example, the Texas Attorney General (AG) has concluded that the Texas A&M University System could withhold requested information about Texas A&M’s Facebook page, because the information related to litigation pending against the university president in his official capacity and was thus excepted from disclosure under section 552.104 of the TPIA. Even though the information was subject to the TPIA, it didn’t have to be released publicly.

Whether a government official’s or government employee’s social media information is considered “public information” under the TPIA is a trickier question.

Information relating to a government official’s or employee’s social media accounts

Information relating to a government official’s or employee’s social media accounts will fall within the TPIA only if it (1) pertains to official business of the governmental body and (2) is created by, transmitted to, received by, or maintained by (i) an officer or employee of the governmental body in their official capacity or (ii) a person or entity performing official business or a governmental function on behalf of a governmental body. Tex. Gov’t Code § 552.002(a) and (a-1).

More often than not, the AG has concluded that the social media accounts of government officials and employees are private.

For example, the AG has held that information relating to a school district superintendent’s social media account and city council members’ social media accounts was not “public information” subject to disclosure under the TPIA.

In deciding whether the requested information is “public information,” the AG has considered factors including: (i) the governmental body’s social media policy; (ii) who moderated, reviewed, and approved the social media information at issue; and (iii) when and where the requested information was created. For example:

• Request for “the names or handles of social media accounts blocked by the named official’s social media accounts . . . [and] direct messages sent or received by the named official’s social media account.” The AG concluded that the requested information was subject to the TPIA, in part because (i) the city’s “Policy on Use of Social Media” provided that city departments may use social media tools such as Facebook, Twitter, and YouTube to reach a broader audience; (ii) comments made on the named official’s Twitter and Facebook pages were moderated by a city employee, and (iii) the direct messages concerned official city business.
• Request for “direct messages sent or received by specified social media accounts . . . and lists of persons blocked by the specified social media accounts.” The AG concluded that most of the requested information was not “public information”, in part because (i) the city’s “Policy on Use of Social Media” did not govern the personal accounts of city employees that are maintained in the employees’ private capacities, and (ii) the specified social media accounts were maintained and managed by city employees solely as private citizens.
• Request for social media posts and messages written by a school district superintendent referencing the district board of trustees election, the five school board candidates, or the requestor. The AG concluded that the requested information was not “public information”, in part because it “consists of personal social media messages sent by the superintendent at home in his personal time.”

If you’re thinking about submitting a public information request and are wondering how the process works in Texas, check out our blog post, “I submitted a Texas Public Information Act request. What happens next?”