Portland, Ore., Commissioner’s Social Media Raises Public Records Questions

Despite discussing city business through her personal Facebook account, Commissioner Chloe Eudaly’s office maintains the posts are not subject to public records laws.

by Jessica Floum, The Oregonian / November 22, 2017
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(TNS) –– Portland Commissioner Chloe Eudaly has taken to her personal Facebook page to vent about and promote much of her work as Portland's newest commissioner.

The posts have caused a public records dilemma that's drawn the attention of the city attorney's office, Portland's human resources director and Oregon state archivist Mary Beth Herkert.

Eudaly's posts have condemned protesters at City Council meetings, dismissed some of the public testimony to the council, disputed the findings in news stories critical of her bureaus and discussed lobbying the Oregon State Legislature to lift the state's ban on rent control.

Only people she has approved can view her private posting. Yet many of her posts have drawn upwards of 100 reactions and more than 100 comments. Others she has taken down after they drew criticism or she changed her mind.

Eudaly has written multiple times on her personal Facebook page that the page is not for official city business and that anyone wishing to discuss city business should contact her office.

Nevertheless, Herkert says, private Facebook posts in which Eudaly makes or receives comment on city matters are public records that the public is likely entitled to see. All should be preserved for the retention period laid out in Oregon's public records laws, she said.

"It is a public record," Herkert said. "She is a commissioner and she's giving her opinion on what she felt went on in the meeting, and that's part of her official business. Once she crosses that line on giving her opinion on stuff, that's part of the public persona."

Eudaly's chief of staff, Marshall Runkel, said the commissioner's office does not retain copies of her posts on her personal Facebook page because they "don't believe them to be part of the public record."

"It's worth digging in and knowing where exactly the rules are, and that's what we're doing," Runkel said.

"There's obviously no impropriety," he added.

Runkel said City Attorney Tracy Reeve notified him last week that her office was looking into a complaint sent to Portland's ombudsman alleging Eudaly violated the city's social media and public records policies.

Reeve told Runkel that she would look into Eudaly's social media usage and into public records laws in order to help the commissioner comply with any rules, he said.

"If the city attorney says, 'you need to change your practices,' we'll comply with the advice of the city attorney," Runkel said.

Several people have complained about Eudaly's social media to the ombudsman's office, records obtained by The Oregonian/OregonLive through a public records request show. The ombudsman's office redacted the name of the people who complained.

One complaint alleged that Eudaly ran "afoul of city social media policies and public record law" by discussing city business, communicating with constituents and having "unreported contact with registered city lobbyists."

"I would like to see what Commissioner Eudaly is saying about the public's business and it's disturbing to me that she's making these important statements privately to supporters and other insiders," another complaint said. "If these statements are being seen by other officials, it also occurs to me that she may be violating public records and meeting laws."

Another complained about the commissioner blocking people from her Facebook page, considering that she had discussed city business on it.

At least six people told The Oregonian/OregonLive that Eudaly blocked them from viewing her personal page, and city records confirm one of those accounts. She also blocked that person from her public page, records show.

Reeve told The Oregonian/OregonLive in an email Monday: "It is of course the case that the Oregon Public Records Law provides 'every person' with the right to inspect nonexempt public records. ... This is true regardless of where the record is stored."

She suggested, however, that this was not necessarily the case for Eudaly before declining to discuss Eudaly's usage, citing attorney-client privilege.

"The mere fact that a public employee posts information on a private social media page which refers to the public body does not transform that private social media page into a public record," Reeve wrote.

According to the Oregon Secretary of State's official guidance for social media use as it pertains to public records law: "If a private account is used to conduct government business then it becomes public and is subject to the Oregon Public Records Law."

Herkert, the state archivist, acknowledged there is a "grey area" when it comes to public figures discussing their work on their personal Facebook pages and that elected officials have the hardest time separating public verses private material.

But she said that any posts or opinions on city council meetings, public testimony or citizen input or other matters related to her day job that aren't duplicated through another official record such as a press release are public records.

"Don't mix personal and work," Herkert said. "As an elected public official, you have a responsibility. If you're going to give out your analysis, do it in an official press release. Don't do it on your private social media account."

This is not the first time that the city attorney scrutinized Eudaly's activity on social media.

In May, a constituent, Nishant Bhajaria, complained to city human resources director Anna Kanwit that Eudaly had blocked him from her public Facebook page.

Kanwit informed Bhajaria on May 9 that Eudaly had violated the city's social media policy, according to emails obtained by The Oregonian/OregonLive.

"Based on the city's social media policy and the Facebook terms of use, in your case the posts that were reviewed by a city attorney determined they did not appear to justify blocking you," Kanwit wrote to Bhajaria. "The commissioner's office has been advised to unblock you from her public Facebook page until and unless you violate the terms of use for Facebook or the City's Social Media Policy."

She also wrote that Eudaly may have deleted public records without retaining them. The city attorney could not find Bhajaria's comments on Eudaly's public page, Kanwit wrote, and "therefore believes they were deleted."

"That is allowable; however a copy of the post should have been retained prior to removal," Kanwit wrote. "This is a new office and there are many rules and policies that every office must become familiar with. Commissioner Eudaly's office now understands the parameters around hiding versus blocking and the need to retain posts on the city commissioner's page, just as they retain other public records."

Runkel said Tuesday that Eudaly's office has not retained any of her Facebook posts, including deleted ones.

©2017 The Oregonian (Portland, Ore.) Distributed by Tribune Content Agency, LLC.