US State Laws Digital Open Records Laws

Navigating the landscape of FOIA and open records laws in the U.S. can be complex, especially when it comes to digital records.

Each state has its own set of regulations dictating how public records, including electronic communications, webpages, and social media posts, should be preserved and accessed.

In this guide, we break down trends in digital recordkeeping requirements across several states, offering an overview of how different jurisdictions handle FOIA and open records compliance.

Disclaimer: This guide is provided as a general overview of digital recordkeeping requirements under FOIA and open records laws across various states. We are a third-party provider and do not represent any government entity. Because state laws and regulations can change frequently, it’s essential to consult your state’s current legislation and your legal team to ensure full compliance with the latest requirements in your jurisdiction.

Last Updated: November 2024

Summary of Key Trends and Themes in US State Open Records Laws

1. US States Definition of a Record

In nearly all cases, anything produced, kept, held, filed, transmitted, or reproduced with or for a government organization, regardless of physical form, could be considered a record.
The content, nature, and purpose of a document, not its physical form, impact its classification as a record.

2. US States Digital Recordkeeping Guidance

Accessibility and organization are a major concern in most recordkeeping guidance, second only to the emphasis on the security and authenticity of records.
For example, California has put forth guidance on making sure records are captured and stored on “trusted systems.” Florida insists that electronic recordkeeping systems include, at a minimum, backup and recovery procedures, automated methods for integrity checking and digital signatures. Illinois mandates the capture of “metadata” and New York requires records be organized, secure, and accessible.

3. Social Media Records

Social media posts are usually considered public records if they relate to official business or public interactions, or the information contained within does not exist as a record elsewhere.
Some states have specific guidance on social media recordkeeping that emphasize the capture of all information, including comments.

4. Website Records

Websites can also be records, depending on the content and nature of the site. If a website is considered a record, its design elements and user interactions are considered part of that record as well.
Most states don’t give website-specific guidance, with exceptions like Massachusetts.

5. Internal Communications and Microsoft Teams Records

Chats and instant messages on platforms like Microsoft Teams can be subject to open records laws, so long as the messages meet the definition of a record.
There usually is no chat-platform or MS Teams-specific guidance, but often they fall under the email recordkeeping requirements.

1. State of Florida “Government-in-the-Sunshine” Open Records Laws

Florida, known for its robust "Government-in-the-Sunshine" laws, has detailed provisions under Chapter 119 Florida Statutes that mandate the preservation of a wide range of documents, including digital records. The law’s definition of a “record” is broad, encompassing not just traditional documents but also any “paper, letter, map, book, tape recording” or similar forms. The content and purpose of an electronic message or social media post often determine if it qualifies as a record.

Florida Digital Open Records Laws Quick Reference:

Florida Open Records Legislation
Chapter 119 Florida Statutes

Florida Definition of a Record
"All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the 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.”

Note: The content, nature, and purpose of electronic communication impact its classification as a record.

Florida General Digital Records Guidance

If an agency is involved in or can reasonably anticipate litigation, they must maintain in native format any and all related and legally discoverable electronic files.
Electronic recordkeeping systems must:
- Provide a method for users of the system to retrieve desired records
- Provide an appropriate level of security to ensure the integrity of the records
- Include, at a minimum, backup and recovery procedures, automated methods for integrity checking and digital signatures

Are Social Media Posts Open Records in Florida?
Yes, placement of content on official social media is treated as a record.

According to the 2023 Edition Government-In-The-Sunshine Manual, page 85:
“...placement of material on a city’s Facebook page is presumably in connection with the transaction of official business and thus subject to Ch. 119, F.S., although the determination would be made based upon the definition of “public record” contained in s. 119.11, F.S AGO 09-19. To the extent that the information on the city’s Facebook page constitutes a public record, the city is under an obligation to follow the public records retention schedules...”

Is Website Content Subject to Open Records Laws in Florida?
Yes, website content is subject to open records laws in Florida. The Electronic Recordkeeping Guidance (clicking will auto download text file) from the Florida Administrative Rules gives general guidance on electronic recordkeeping, though no specific rules for websites.

Is Microsoft Teams Chats Subject to Open Records Laws in Florida?
Yes, Microsoft Teams messages are subject to open records laws in Florida. All electronic communications regardless of format are subject to open records laws insofar as they are made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Florida Digital Open Records Guidance & Resources

2. State of California Public Records Act

California’s California Public Records Act (CPRA) focuses on accessibility and transparency for all “writings” related to public business, regardless of format. According to California’s Records Management Handbook, ensuring records have descriptive metadata is essential to facilitate quick search and retrieval of records.

For California agencies, the emphasis on “Trustworthy Electronic Document or Record Preservation” means agencies must ensure that digital records are managed in a way that is “trustworthy” and reliably preserves content for future access.

California Digital Open Records Laws Quick Reference:

California Open Records Legislation
California Public Records Act (CPRA)

California Definition of a Record
“Any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

California General Digital Records Guidance

Metadata management, storage optimization, electronic discovery requirements, and privacy attributes are all essential when considering electronic recordkeeping systems.
Descriptive metadata makes the search and retrieval of an electronic resource relating to requests much more manageable.

Are Social Media Posts Open Records in California?
Yes, content posted on official social media accounts can be considered a record. According to Chapter 3 - Electronic Records and Storage of California’s Records Management Handbook:

Social media is a broad term that incorporates various web based technologies such as blogging, video sharing, wikis, social networks, and photo libraries.
A social media entry is a record if:
- It contains information or evidence concerning an agency’s mission, policies, or official business
- The information is not available elsewhere
- Documents a controversial issue
- Documents a program or project that involves prominent people, places or an event

Excerpt:

"Because these websites can be shut down at any moment in time, creating a plan on how to export records from a social media site to a record keeping system is important.... If the public is able to interact with the agency via the social media platform, there needs to be a mechanism to track and manage all comments and questions in accordance with the retention schedule.”

Is Website Content Subject to Open Records Laws in California?
Yes, website content is subject to open records laws in California. There is no website specific guidance but as a record they are subject to trusted systems guidance.

Are Microsoft Teams Chats Subject to Open Records Laws in California?
Yes, Microsoft Teams Chats could be subject to open records laws in California – the content of the message determines whether it is a record.

There is no specific guidance on Microsoft Teams chats being preserved as records, as it is a 'format' not a record series on its own. Applying guidance for electronic mail management outlined in the Records Management Handbook is likely the most relevant guidance appropriate to apply to team chat platforms.

California Digital Open Records Guidance & Resources

3. State of Illinois Freedom of Information Act

In Illinois, open records laws require that any record tied to government functions be retained, though the state avoids a one-size-fits-all retention period. This flexibility requires careful management to determine retention based on each record’s purpose. The state makes clear that content, rather than format, drives whether something is a record.

Illinois Digital Open Records Laws Quick Reference:

Illinois Open Records Legislation
5 ILCS 140/ Freedom of Information Act

Illinois Definition of a Record

"All records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”

Illinois General Digital Records Guidance

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.
Systems used to store and access electronic records must capture metadata.

Are Social Media Posts Subject to Open Records Laws in Illinois?
Yes, social media posts can be considered open records in Illinois.

According to the Illinois State Archives, in Managing Social Media & the State and Local Records Acts: A Quick Guide for Social Media Policy and Management:

When social media is used as a two-way communication forum, then records are being created and will require management.
Any public comments are protected by the First Amendment.
When an agency elects to open a page to receive comments from the public, then the original posting, along with all comments associated with it, is a record.
If an agency chooses to place original records or communications on social media, these become subject to the agency’s existing retention schedule.
The social media platform is a venue, or portal for displaying copies of records, but is not in and of itself a record.

Is Website Content Subject to Open Records Laws in Illinois?

Yes, website content can be subject to open records laws in Illinois.

Though the management recommendations for websites are not the focus of the Quick Guide for Social Media Policy and Management document, some of the recommendations put forward can apply to an agency’s website.

Are Microsoft Teams Chats Subject to Open Records Laws in Illinois?
Yes, Microsoft Teams Chats are considered records in Illinois. If the information contained in the messages fits the definition above of a public record, then the information is subject to the provisions of the Act regardless of the media the data is maintained in or on.

Illinois Digital Records Guidance Resources

4. State of Massachusetts Public Records Laws

In Massachusetts, the open records landscape emphasizes accessibility. The Massachusetts Public Records Law specifies that all recorded information held by government bodies is public unless explicitly exempted. This open stance means that everything from emails to social media posts must be accessible if it relates to public duties. Records Access Officers (RAOs) play a vital role in Massachusetts, with legal obligations to provide records promptly or to explain any delays.

Massachusetts Digital Open Records Laws Quick Reference:

Massachusetts Open Records Legislation
Mass. General Laws c.66

Massachusetts Definition of a Record
Every record that is made or received by a government entity or employee is presumed to be a public record.

M.G.L. Chapter 4, Section 7, Clause 26:

"Public records'' shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32.

Massachusetts General Digital Records Guidance

It is the responsibility of government employees who create, receive and maintain public records to ensure their safekeeping and availability to the public until the retention period for the specific records series has expired.
Record retention schedules differ depending on their purpose and document type rather than the medium or delivery format.

Are Social Media Posts Subject to Open Records Laws in Massachusetts?
Yes, social media posts are open records in Massachusetts.

Social media posts are encompassed under email recordkeeping requirements: “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003). (Jump to section on electronic mail recordkeeping requirements.)

Therefore, public entities should:

Review the social media provider’s terms of service for records retention practices.
Retain copies of social media content in line with the Statewide Records Retention Schedule.

Is Website Content Subject to Open Records Laws in Massachusetts?
Yes, website content is subject to open records laws in Massachusetts.
Records created or posted to websites, including externally hosted websites, are subject to electronic records requirements.

This includes retention of technical documentation of the design, construction, and use of the website, including a general description of the site’s purpose, descriptions of major features and sections, diagrams and descriptive lists of links, descriptions of data sources, periodic screen dumps of major pages and electronic snapshots of web pages.

Websites that offer transactions (like submissions of payments, applications, and more) need to retain and provide access to all data related to such transactions.

Are Microsoft Teams Chats Subject to Open Records Laws in Massachusetts?

Yes, Microsoft Teams chats can be subject to open records laws in Massachusetts.
Text messages and instant messages are encompassed under email recordkeeping requirements: “any message created on an electronic mail system,” which in turn is defined as “a service that provides facilities for creating messages, transmitting them through a network and displaying them on a recipient’s computer terminal.” SPR Bulletin 1-99 (2003).

Though there is no specific guidance for instant messaging communications, the guidance for email in section 5 of the Electronic Records Management Guidelines would apply.

This requires the retention of specific information, including:

The names of the sender and addressee(s)
The date the message was sent;
Message metadata;
Any attachment must be preserved in order for the context of the message to be understood; and
Any other transmission data that is necessary for the purpose of providing the context of the record.

Further, any recordkeeping systems for the maintenance of electronic mail records should:

Permit easy and timely retrieval of both individual and groupings of related records and files
Retain the records in an accessible format for their required retention period
Permit transfer of permanent records to the State Archives facility
Maintain sufficient information to allow for identification of each document

Massachusetts Digital Records Guidance Resources

5. State of New York Freedom of Information Law

New York’s Freedom of Information Law (FOIL) defines public records broadly, covering any information “kept, held, filed, produced or reproduced” by an agency. This means that anything from social media posts to web content falls under FOIL, so long as it relates to public business. Agencies are required to provide records in a requestor’s preferred format whenever possible, a principle that reinforces New York’s commitment to public accessibility.

New York Digital Open Records Laws Quick Reference:

New York Open Records Legislation
New York’s Freedom of Information Law, Article 6 (Section 84-90)

New York Definition of a Record

“Any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”

New York General Digital Records Guidance

From Electronic Records | New York State Archives guidelines:

Electronic records must be organized, secure, and accessible.
Maintain electronic records in their native format throughout their lifecycle.
The legal retention period for records is not determined by their format but by their function and their legal, administrative, and fiscal value.

Are Social Media Posts Subject to Open Records Laws in New York?

Yes, social media posts are open records in New York State.

According to New York State Archives, in their Understanding the Importance of Managing Social Media Records document:

“The retention of some social media content may prove relatively easy. For example, if a government is uploading videos to YouTube and has turned off the comments, it’s possible to maintain the original file as the official copy and consider the copy on YouTube a duplicate. The retention period is applied to the original file. Likewise, if the government is simply reposting a press release to its social media, it may be possible to treat the social media posting as a duplicate and retain the original press release as the official copy. Realistically, however, most social media records will be more complicated to manage. “

They recommend using a cloud-based social media archiving tool that will capture your social media records and store them on their own servers, which provide their own suite of management tools to allow users to organize, view, and store their social media records for a wide variety of social media platforms.

NOTE: The New York State Archives offers a Local Government Records Management Improvement Fund Grant, with grant coverage up to $75,000 for individual agencies

Is Website Content Subject to Open Records Laws in New York?
Yes, website content is subject to open records laws in New York State. Though they don’t supply any specific guidance on websites, webpages are listed as electronic records that should be maintained in native format.

Are Microsoft Teams Chats Subject to Open Records Laws in New York?
Yes, Microsoft Teams Chats can be subject to open records laws in New York State.
Generally, records transmitted through messaging systems have the same retention periods as records in other formats that are related to the same program function or activity.

New York Digital Records Guidance Resources

Case Studies: Government & Public Agency Social Media & Website Recordkeeping

Learn more about how other government agencies and public sector organizations are capturing, preserving, maintaining, and producing records for FOIA and open records requests in these case studies:

Additional Resources: Social Media, Website, & Microsoft Teams Recordkeeping for Government

More State FOIA and Open Record Law Summaries and Quick Guides Coming Soon!

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Ohio
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Washington State
Wisconsin
Arizona
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