Transparency in government and the public process has been the goal of the Texas Open Meetings Act since it was adopted in 1967. The Act requires state and local government entities to ensure that the public can access and participate in many aspects of the decision-making process. New technologies and the widespread use of social media, however, have dramatically changed how both government officials and the public communicate, raising questions about how communication over social media could affect the public process.
Beyond phone calls: social media, texts and walking quorums
The term “walking quorum” describes a way in which a governmental entity might try to subvert open meeting requirements by discussing public business in a series of small meetings or phone calls, such that a quorum is never present in the same physical place at one time. A 2010 report by the Senate Committee on State Affairs discussed the possibility of walking quorums occurring via emails, text messages or social media as well by phone and in person.
In the report, the committee also raised the possibility of a quorum existing if the majority of the governmental body discussed public business on a Facebook wall, for example; such a discussion might be considered either open or closed to the public depending on privacy settings. Regardless of the forum for the discussion, any discussion of public business for a quorum of a governmental entity is most likely subject to the Open Meetings Act. Because of this, public officials should be extremely cautious when discussing any public matter on social media.
Discussion of public business on online message boards
In 2013, the Legislature amended the Act to allow government entities to discuss public business outside of open meetings through written communication on online message boards if the public can view and search the communication in real time.
Communication on such message boards is considered public information and must remain accessible to the public for at least 30 days after posting, and the online message board must meet several additional requirements to ensure that the platform is accessible to the public. No voting or formal action may be taken on online message boards. While it is possible that discussion on a Facebook page could meet the requirements under the law, governmental bodies should consult an attorney before using a Facebook page or other social media platform for any discussion of public business.