REGION — In New York State, Freedom of Information Law (FOIL) requests can be very useful in obtaining information about state government. But they won’t provide a resident with a list of people who have been blocked on social media accounts by lawmakers.

Angela Greben, an open-records activist who follows censored Twitter accounts, made such a request earlier this year, and it was denied.

The reason given was that the records Greben sought are not covered under the Public Officers Law, and “the purported record sought is not maintained by the assembly and even if such a listing existed whom an individual member may have blocked or muted on his or her Twitter account would not be a central administrative record.” Therefore the Assembly would not give it to a FOIL filer.

Greben also made a list of Assembly members who have blocked members of the public. Among them were Karl Brabenec, David Buchwald, Nicole Malliotakis and Deborah Glick. Depending on the outcome of a couple of different legal cases regarding who should have access to a public official’s social media accounts, the New York Assembly may have to adjust its policy.

There is a case in North Carolina that is currently before a federal appeals court involving a Facebook page created by a school board member named Phyllis Randal, who had blocked a resident who had been critical of some of the school board members. Earlier this year, Federal Judge James C. Cacheris ruled that blocking the resident from the public forum was a case of “viewpoint discrimination.”

That case is being appealed, and the American Civil Liberty Union (ACLU) branches of four states weighed in on the matter on November 29 with amicus briefs. The North Carolina ACLU said that, in coming to a conclusion about this matter, the courts must weigh the First Amendment rights of a member of the public against those of public officials.

The ACLU wrote, “Courts must begin by asking which role a public official embodies on a given social media account: that of a private speaker or a government actor. If the answer is ‘private speaker,’ she can limit her audience and curate the messages on the page, just like any other member of the public. But if the answer is ‘government actor,’ the First Amendment dictates that she can’t prohibit access to her social media in three specific circumstances.

“First, once she intentionally opens up her social media for public conversation, she can’t stop people from joining in because of the views they express on the topics at hand. Second, if she generally allows individuals to ask for government services through her social media account, she can’t block critical voices from doing so. And, finally, if she uses her account to publicly share government information, she can’t prevent people from actually being able to see her posts because of their viewpoints.”

The other important case regarding blocking people from social media involves President Donald Trump, who is being sued by the Knight First Amendment Institute at Columbia University for blocking seven people from his Twitter account. Trump’s lawyers argue that the First Amendment protections don’t apply here because his account is a personal one.

The institute disagrees, and so does the Electronic Frontier Foundation (EFF), which filed an amicus brief in the case on November 7.

“Governmental use of social media platforms to communicate to and with the public, and allow the public to communicate with each other, is pervasive. It is seen all across the country, at every level of government. It is now the rule of democratic engagement, not the exception,” said EFF Civil Liberties Director David Greene. “The First Amendment prohibits the exclusion of individuals from these forums based on their viewpoint. President Trump’s blocking of people on Twitter because he doesn’t like their views infringes on their right to receive public messages from government and participate in the democratic process.”

Once these two cases are settled, there will be more clarity about the differences between a private social media account and one operated by a government actor.

In the meantime, regarding the New York State Assembly, Greben cautions, “Keep in mind what this means overall. Tweeting a New York Assembly member may result in being blocked by that person for any reason. There is no official way to request a repeal of the block, and there is no way of knowing if you end up being muted or not. New York Assembly members are not accountable to anyone, nor are they expected to act in a transparent manner on Twitter.”