Clark County Councilor David Madore‘s preferred form of communication with constituents — his often controversial Facebook page — has raised questions about the county’s handling of public records.
Clark County has denied multiple requests by The Columbian and others for messages to and from Madore’s public Facebook page, which he uses to campaign and engage with constituents, some of whom he apparently bans for questioning or disagreeing with him.
Madore has repeatedly branded his page as an “online newspaper,” and himself a “citizen reporter,” denying the page is county business.
But Madore has used the page to write about county business since he was elected. He recently posted, for example, about the Southwest Washington Behavioral Health Governing Board‘s final meeting, and many other posts share details from recent county council meetings.
In response to a Columbian request for messages and a list of the banned commenters, Nick Power, Madore’s attorney, said in an email to the county that the information specified does not relate to government functions.
“I think the case law is pretty well settled that if the record is not used in the functioning of government such does not have to be disclosed or identified under the (Public Records Act),” he wrote.
Power did not comment further on the matter when reached by The Columbian.
In contrast, the other councilors who have public-facing Facebook accounts where they regularly engage with constituents — Jeanne Stewart, Julie Olson and Marc Boldt — all provided The Columbian with responsive records including private messages and names of banned commenters in response to a public records request.
Chief Civil Deputy Prosecutor Chris Horne advised the councilors at their January retreat that if they are going to use social media, that they do so on a server that the “county controls so that we can preserve and protect that material.” County departments are linked to social media archiving software, creating a searchable database of posts on those pages.
And indeed, email records show the prosecutor’s office first asked Madore to connect social media archiving software to his social media accounts in 2013, and most recently this February. But Madore never connected his Facebook account, records show.
Bill Richardson, an attorney in the Clark County Prosecutor’s Office, said the county holds that it is unable to access or control Madore’s social media, and therefore cannot provide records in response to public records requests. Madore’s page draws the line between where Madore the county councilor ends and Madore the citizen begins, he said.
“A social media account created, owned and managed solely by a person who happens to hold a public office is not necessarily a public record,” Richardson said. That page may contain records, he noted, but it “cannot be seized” in an effort to respond to public record requests.
Toby Nixon, president of the advocacy group Washington Coalition for Open Government, isn’t buying Clark County’s arguments. Nixon said Clark County is “trying to escape doing some work.”
“If (a public official is) using a private email account or private text messages or Facebook messages, if the content of the message has to do with the business of the agency, then it’s a public record and it’s subject to the retention laws of the state and the disclosure laws,” Nixon said.
In response, Richardson said the county has “diligently pursued this issue,” and denied that it is trying to “escape” doing work.
“We are simply utilizing the tools provided to us by the (Public Records Act) and interpreting case law, while respecting personal property rights guaranteed by the Washington and United States constitutions,” Richardson said. “In other words, we cannot hijack a person’s website to satisfy a public records request.”
Social media as a public record has not specifically been tested in a Washington court.
