The contents of a Facebook page maintained by the mayor of Victoria don’t qualify as government data and aren’t subject to state laws that require them to be made available to the public, according to an opinion issued this week.
City officials had requested the opinion from state Administration Commissioner Matthew Massman about a Facebook page established by Mayor Tom Funk, who uses it to write about city issues.
Though Massman’s opinion is only advisory in nature, experts on government data law said it “shocked” them because, they said, it would allow public officials to discuss city business online without necessarily having to make the discussions available to the public.
“The horrifying part of this is the mischief that it says governments can do,” said Don Gemberling, spokesman for the Minnesota Coalition on Government Information. “You can put anything you want on social media and No. 1, the public can’t get at it, and No. 2, they can’t do anything about it.”
Social media “is starting to raise strange issues” surrounding the state’s data practices law, Gemberling said.
Victoria City Attorney Robert Vose asked for Massman’s opinion after a Victoria resident sought information from Funk’s page — called “Victoria Residents First” — under the state’s Data Practices Act.
The act, established in the 1970s, controls how government information is to be collected, created, stored and made available to the public.
In his letter to Massman, Vose argued that Funk’s page should not be considered government data. The Victoria City Council did not authorize the page, and the information in it was “not collected, created, received, maintained or disseminated by the City of Victoria,” Vose wrote.
Vose said Thursday that cities should not be held responsible for elected officials’ social media accounts, because they often have no way of knowing what they contain or whether they even exist.
Funk describes his Facebook page as a place for the public “to follow my activities as Mayor of Victoria.” For example, he wrote about a proposal to build a parking garage in Victoria that “any Council that does this would be wasting $2,000,000 of the [taxpayers’] money.”
Funk said he maintains the page as “an attempt to get complete information out there,” and noted that his Facebook settings make all contents visible to the public.
Facebook allows page owners to ban people from the page and also provides a means of conducting private conversations.
Rich Neumeister, a longtime open-records advocate, said he didn’t think Massman’s decision took account of the ramifications of previous opinions on similar situations.
“It has far-reaching effects on how government entities, I think, are going to read it,” he said. “So I would suggest that maybe they need to pull the opinion, and to review it, and to clarify it. … It’s a big deal.”
The opinion was the second time in the past six months that a state-level decision was rendered on government transparency in Victoria, a Carver County city of 9,300.
The Minnesota Supreme Court ruled in July that though Victoria City Council members had violated the state Open Meeting Law, they couldn’t be removed from office without two additional violations of the sunshine law.