Agency Tweets as “Guidance”

August 24, 2012

Here’s a query we could use your help with.  We continue to field questions about whether a tweet or other social media mention from a federal agency might qualify as “administrative guidance.”

First, why does it matter?  Just six years-old, Twitter has been widely adopted by large corporations, customer service operations, and major government agencies. But, if “guidance” is typically not a final agency action subject to judicial review and has no binding or estoppel effect on the government, why then does it matter?

Second, we found very little information on the subject.  For these social-media related questions, we often begin with a traditional terms and connectors search using various social media applications as key terms:

twitter blog web-log social-media facebook /s agency administrative /2 guidance interpretation

 

There were certainly interesting results in secondary sources:

…agency officials might make statements through social media to drum up interest in the rulemaking or encourage the public to comment.
but the concern for addressed by these articles seem to have more to do with a tweet’s status as a “federal record”:
These statements and resulting public comments present a novel question for records management–are they federal records?
See 63 Admin. L. Rev. 893, 930
This article also directed us to a National Archives Bulletin relating to agency management in social media platforms.  This site, in turn,  includes a link to a National Archives Study (pdf) of agency’s usage of social media:
In Fiscal Year 2010, the National Archives and Records Administration (NARA) undertook a study to observe how agencies are using web 2.0 tools to conduct business and identify characteristics that may affect the value of information created and shared in web 2.0 formats. A NARA team interviewed six Federal agencies that are using web 2.0 tools to conduct mission-related business and have policies or procedures for implementing and using tools. Representatives from an additional nineteen Federal agencies volunteered to attend a focus group jam session to provide a broader understanding of Federal web 2.0 uses.
Our colleague, Max, had the clever idea of drafting a search  search focusing on an earlier communication technology.  Try this plain language search:

“agency guidance” by telephone

He found 22 Case results in All Federal including Battle Creek Health System v. Leavitt, 498 F.3d 401.  That case noted that agency interpretations that aren’t subject to the notice and comment process are not entitled to full Chevron deference, however, they can still be persuasive authority.

 

Additional Research References

Interestingly, one week ago the FEC released an advisory opinion, available at 2012 WL 3598215.  The opinion clarified the fact that politicians may, consistent with federal law, fundraise via text message.  The government may or may not be able to beam official advice diretly to your phone, but apparently it’s quite simple for you to send your money in the opposite direction.