Whatcom County councilors like Facebook; public-records rules remain fuzzy

Whatcom County Council member Ken Mann has been active on his "Ken Mann Whatcom" Facebook page since he first ran for the office in 2009.
Whatcom County Council member Ken Mann has been active on his "Ken Mann Whatcom" Facebook page since he first ran for the office in 2009. The Bellingham Herald

Social media have made it easier than ever for elected leaders to reach the public. But the Whatcom County Council is divided over whether Facebook is an appropriate venue for discussing government business.

Some council members are leery of how communications on social media fit into the state’s public-records laws.

“It’s a gray area. There are no hard and fast rules,” said council member Ken Mann, who has been active on his council member Facebook page, “ Ken Mann Whatcom,” since he first ran for the office in 2009.

While acknowledging the legal questions, Mann posts frequently to his page: meeting agendas, unvarnished opinions on recent council votes, and the occasional link to national news.

“I feel like I’m allowed to make public comments and have dialog on Facebook,” Mann said. “I don’t conduct county business on Facebook. When someone sends me a direct message on Facebook, I say, ‘Please email this comment or this question to my email account at the county.’”

Direct messages, the most private way to interact on Facebook, likely would elude a public-records search, even if undertaken by the county’s own staff on the public’s behalf. Members of the public can request communications by government officials under the state’s Public Records Act.

“The issue we all have is with the public disclosure request,” said Sam Crawford, who maintains a personal Facebook page. “The state defines communication as anything put in writing, and that includes social media.”

Crawford, first elected to the council in 1999, said county attorneys have advised members to stay away from Facebook for uses that relate to their political office.

“We received counsel from our attorneys. We don’t make it a hard and fast rule, but don’t use social media to communicate with constituents,” he said.

That advice falls short of a mandate. The county has no policy on social media use by individual council members.

“The county exercises no control over personal accounts,” said county attorney Karen Frakes, who advises the council.

What if someone requests a record of the communications on “Ken Mann Whatcom,” Rud Browne’s page “ Rud Wants To Know” or Carl Weimer’s “ Whatcom Water Action?”

“There’s nothing we can do about accessing that,” said Mark Burnfield, the county public records officer. “I would hope that they’re not putting anything out there that would be considered a public record.”

Chances of that are slim, Burnfield said. For a Facebook post to be a public record, it would need to be official county business that couldn’t be obtained anywhere else.

Burnfield said he couldn’t give a legal opinion, but he hoped council members had disclaimers on their Facebook accounts: “This is my page, not the county’s.”

Mann’s page says, “Ken’s opinions are not official county statements.” Weimer and Browne, who started their pages this year, have not included a disclaimer.

Browne and Mann said their Facebook privacy settings are as public as possible, so anyone can see the information on their pages. Weimer’s Facebook page, which accompanies his water-issues blog, also is public.

Browne said the message he took from county attorneys was that if you use Facebook, know that it’s subject to public records rules.

“My expectation is, anything that goes there is public record,” he said. “I think every communication I’ve had is visible.”

Weimer said council members’ social-media use was a “big issue” with a lot of unanswered questions. Though his page is public, he said he couldn’t guarantee that everything on his page would be accessible.

“I don’t know how this all fits under the open public records act,” Weimer said.

Some municipalities in Washington have adopted social-media policies for elected officials. The potential — both negative and positive — of sites such as Facebook and Twitter came to the attention of local governments around 2010, when the city of Cheney adopted language similar to that proposed the previous year in Seattle.

Cheney’s policy considers anything on a council member’s account as public record. Councilors are responsible for making social media materials available to the city office that handles public records requests. Cheney council members may not delete comments by others without saving them somewhere so they can be retrieved.

“Council members are strongly encouraged to maintain social media sites with settings that can restrict users’ ability to comment,” the Cheney policy says.

Not one to shy away from saying what he really thinks, Mann has had to endure harsh criticism in comments from his Facebook followers.

“As a politician, it’s sort of an intensified version of being involved in politics in the first place,” Mann said. “People, when they agree with a politician, it’s not a remarkable event for them. It doesn’t stick with them. ... When they disagree with a politician, it’s etched into their brain forever.”

Mann said he has considered softening his tone on Facebook.

“The temptation is to put up posts that are bland and banal, take the safe approach that wouldn’t offend anybody but still provides information. But that’s just lame,” he said.

Barry Buchanan so far hasn’t started a Facebook page for his job as council member. Barbara Brenner and Pete Kremen don’t even have personal Facebook pages, they said.

“I like it real personal. I like to talk to people in person,” Brenner said.

Like Crawford, Buchanan wants to be careful about running afoul of public records law.

“It’s been really assuring for me to be able to deal with the public in writing on my county email address,” Buchanan said. “The jury is kind of out on social media and text messaging, how that fits into the whole public disclosure world.”

Buchanan hasn’t ruled out using Facebook in his role as council member.

“I would like to use it more for outreach in the future,” he said. “It has a lot of things that are advantageous for us to be able to reach the public. Everybody has a little different comfort level as to how they feel about that whole public disclosure thing.”