FOIC declines to settle social media posts question

The Freedom of Information Commission (FOIC) declined to make a determination about whether Facebook posts made in a private group, but in which a Wallingford town council member discussed a potential run for mayor, violated the Freedom of Information Act (FOIA).

The FOIC unanimously adopted a hearing officer’s report that dismissed the complaint on the basis that since the posts had been deleted and were unrecoverable, the councilman in question had violated FOIA by failing to turn over responsive records during a June 26 meeting.

Both complainant Keith Massimino and Vincent Testa, who serves on Wallingford’s town council, are members of a private Facebook page named “Wallingford News and Information.” The page is privately run and participants must answer a series of questions to become members. According to the hearing officer’s complaint, members “can then use the Facebook page to review local news and activities and exchange opinions on issues related to the town.”

On June 6, 2023, Jason Zandri, the page’s administrator and a former town council member, posted a hyperlink to a news article announcing Testa and another town council member had filed paperwork to run for mayor in the group. Massimino responded to the post, questioning whether Testa should be mayor.

According to the hearing officer’s report, Massimino and Testa “exchanged in back-and-forth posts on the Facebook page, regarding issues related to Councilman Testa’s performance and voting record as a member of the Town Council, his opinions on issues and his potential candidacy for mayor of the town” for a period of time around June 8, 2023. The hearing officer’s report also noted that Testa posted these comments on his own behalf and not as a member of the town council.

Shortly after the exchange happened, Testa deleted “multiple comments he had posted responding to various comments and questions” Massimino posted.

On June 20, 2023, Massimino requested copies of Testa’s comments in the group from around June 8. He acknowledged that Testa had already deleted the posts he was seeking in his initial request. According to the hearing officer’s report, prior to receiving Massimino’s request, Testa twice tried to recover the deleted posts using Facebook support but was unsuccessful.

On July 11, 2023, Massimino appealed to the FOIC, alleging that Testa had violated FOIA by failing to turn over the requested records.

During a hearing held about the complaint, Massimino acknowledged Testa had deleted the posts prior to his request but argued that if the FOIC found the posts met FOIA’s definition of a public record, it would help prevent similar posts from being deleted in the future.

The commission, however, declined to make that ruling. Instead, they found that there were no responsive records to Massimino’s request and declined “to make a determination as to whether the social media posts were or were not public records at the time they were posted on the Facebook page.”

The commission cited a 2019 superior court decision from a case about whether social media posts about state business that a state employee shared on personal devices while off the job were public records. In a FOIC decision that preceded the court challenge, the commission declined to answer that question.

The superior court ultimately ruled the FOIC’s decision not to answer that question was within its right.

The FOIC’s decision in Massimino’s complaint cited the superior court’s holding from the 2019 case that they were not required to “decide a novel and difficult issue such as whether and under what circumstances, if any, the social media posts of a state employee, made on his own time and his own electronic devices, constitute public records when that decision will have no practical effect for the member of the public requesting those records.”

The FOIC dismissed Massimino’s complaint.

The post FOIC declines to settle social media posts question appeared first on Connecticut Inside Investigator .