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HomeMy WebLinkAbout11 - Council Policy D-5 - City's WebsiteCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 July 28, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Tara Finnigan, Public Information Manager ext. 3035; tinnigan((Dcity.newaort-beach.ca.us SUBJECT: ADOPTION OF COUNCIL POLICY D -5 REGARDING THE MANAGEMENT OF THE CITY'S WEBSITE ISSUE: Should the Council adopt Council Policy D -5, establishing the City Council's policy on the use and content of the City's websites? RECOMMENDATION: Review and adopt Council Policy D -5. DISCUSSION: Background: With the increased use of websites as a tool for informing the public and expediting business functions, staff realizes the need for a policy protecting the intellectual property on City websites, and establishing the purpose and functions of the various City websites (City, Library and Police). In light of significant First Amendment issues related to a city website, staff believes there should be a Council Policy that provides clear guidance and necessary restrictions on links that staff posts on the websites. The draft policy has been reviewed by the City Council's Media and Communications Committee, the Staff Communication Committee (includes a representative from each City department,) the Office of the City Attorney, the Information Technology Division Manager, and outside counsel. If approved, this policy will pertain to all Internet websites owned and maintained by the City of Newport Beach, including. Newportbeachca.gov (formerly city.newport- beach.ca.us,) nbpl.org and nbpd.org. Individual departments post pertinent links on their departments' web pages. The decision to recommend posting a link on a department web page is made by City staff within departments, and is based on staffs opinion of the degree of helpfulness the linked site Council Policy D -5 July 28, 2009 Page 2 can provide to those who access the City web pages. Links are not posted in response to requests from third party individuals or entities. Additional links are provided on the separate Newport Beach Police Department and Newport Beach Public Library websites. The Police Department website links primarily to other government entities, a category considered to be low -risk from a First Amendment perspective. The Library has collected a wide variety of links on its website, selected because Library staff has determined that the linked sites help it fulfill its charge of meeting the cultural, educational and informational needs of Library customers. Library links include sites that publish updated lists of current bestselling books, encourage reading, and allow library patrons to download digital and audio books. There are temporary links to the websites of performers and speakers scheduled for appearances at the library branches. The Library's "homework help" web page for children connects to sites that staff believes are appropriate in the context of facilitating the research process for juvenile library patrons. City Manager and City Attorney staff considers "educating and facilitating research" an excessively broad purpose for the overall City website. However, in the context of the Library's particular mission to "serve as the cultural, educational, and informational heart of the city," staff believes these links are consistent with the Library website's purpose. Therefore, the proposed policy includes language that permits City Manager consideration of links on the Library website that further the Library's mission to meet the cultural, educational and informational needs of its customers. ANALYSIS The Office of the City Attorney reviewed and extensively analyzed existing First Amendment and state law considerations relating to speech on websites, and advised the Media and Communications Committee. The Office of the City Attorney believes that if its recommended procedures are followed by staff, no public forum will be created on the City websites, enabling the City to create vibrant, engaging websites that further the purpose the City websites are intended to achieve. Recommendations for links on City websites. The posting of links on City websites raises significant "speech" issues. If the City posts links in response to third -party requests, or if all links selected do not further a City message, mission or policy, a reviewing court could find that the City created a limited public forum, at least as to the general topic of issues related to a requested link's subject matter. Speech in a limited public forum can be regulated by the City, but regulations must be content- neutral. Furthermore, the various City departments have different missions and different types of links that their customers will find helpful. Therefore, creating a limited public forum by drafting categories of permitted links that are neither over- nor under - inclusive proved challenging. Staff determined that a better approach is to refrain entirely from creating a limited public forum on the City's website. Staff believes if the City follows an established approval process, posts only links that are in support of the Council Policy D -5 July 28, 2009 Page 3 website's purpose, and does not post links at the request of outside entities, links will remain government speech and the website's nonpublic forum status will be maintained. Proposed Council Policy D -5 sets forth the purpose of the City websites: "to provide timely information about City services, officials, programs, projects and events to the local community and the general public." It also sets forth approved categories of links to provide guidance to staff of general categories which the City Council has found to be consistent with the purposes of the City websites. Proposed website link approval process: As the new City website prepared to launch, Department Directors were asked to review a list of the links their staff proposes to include on their department's web page or website. The Department Directors or their designees determined the links they believe are consistent with the website's purpose and will further their department's mission. Their recommended list of links has been submitted to and reviewed by the City Manager's Office for consistency with proposed Council Policy D -5. The City Manager's designee's provisionally approved list of links was reviewed by the Office of the City Attorney for consistency with existing law, and a final list of links was approved. This is the process that City Manager and City Attorney recommend be followed in the future to protect the websites' nonpublic forum status. Under the proposed policy, Department Directors will review all staff recommendations for links, and forward a recommendation for specific links to the City Manager's Office. The City Manager or his/her designee will review Department recommendations and determine whether the link fits into one of the enumerated approved categories in the proposed policy. If a link does not fit within one of the enumerated approved categories, or its ability to further the websites' purpose is not immediately clear, the City Manager's designee shall deny the link or ask for further information. If the Department Director believes that the denied link furthers the department's or City's mission and the website's purpose of providing timely information about City services, programs, projects and events, the Department Director may explain why the link is recommended. The City Manager or his /her designee can then review the link solely for consistency with the website's stated purpose, and can approve based on that consistency. As the law affecting websites and speech is currently evolving, the Media and Communications Committee requested that the Office of the City Attorney also review the requested links to ensure that links posted do not create First Amendment issues. Thus, conditionally approved links will be forwarded to the Office of the City Attorney for consideration that they do not create a First Amendment problem. Council Policy D -5 July 28, 2009 Page 4 If a requested link falls within one of the enumerated prohibited categories or creates "speech" issue, then the City Manager's Office shall deny the link. Staff should follow the procedural safeguards for creating government speech by reviewing the content of the linked websites, and periodically monitoring sites to be sure that the content continues to be speech that supports the City's mission and the website's purpose, and that no violations of state law occur. State law concerns. Government Code Section 54964, and Stanton v. Mott (1976) 17 Cal.3d 206, prohibit the City from spending public funds on partisan election campaigns. The City cannot expend public funds on any communication that expressly advocates the approval or rejection of a clearly identified ballot measure, or election or defeat of a clearly identified candidate, if such ballot measure or candidate is certified to appear on a local ballot. (West's Cal.Gov.Code.Ann. § 54964(a}(1) and (3).) Public agencies may, however, spend public funds to inform. (West's Cal.Gov.Code.Ann. § 54964(c).) Although the funds expended on providing links are not large, some minimal level of money is spent to add links. Funds are also spent to maintain the website as a whole, of which individual links are a small portion. Because the law does not provide a minimum financial threshold in this area, the City should ensure that links that have included endorsements of specific candidates or ballot measures in the past are monitored and taken down if prohibited content is posted on the linked website. Alternately, the City Manager's Office may choose to approve those links only if the linked website agrees not to post communications that expressly advocate the approval or rejection of a clearly identified ballot measure or candidate certified to appear on the local ballot on its homepage. The federal government imposes further restrictions on websites with a ".gov" domain name. The guidelines issued to clarify the federal policy on Gov Internet domains state that the Gov Internet domain "may not be directly linked to or refer to websites created or operated by a campaign or any campaign entity or committee. No political sites or party . names or acronyms can be used." (Italics added.) (Gov Internet Program Guidelines <http://Www.dot-gov.gov/prog ram guidelines asax >[as of July 13, 2009].) Therefore, when incumbent Council members are actively engaged in their own election campaigns, the static listing of their web pages should be removed if they link or refer to a campaign website as well, to avoid violating federal restrictions on Gov Internet domains. The time limits of active election campaigns are less helpful than they appear; at least one First Amendment case has noted that it is difficult to tell when one election ends and another begins. (Curry v. Prince George's County (D. M.D. 1999) 33 F.Supp.2d 447, 455 fn 10.) At a minimum, references to Council members' websites should be removed 120 days before an election in which that Council member is a candidate. In summary, staff is of the opinion that following the approval of links while monitoring the development of the will create a defensible, valuable communications tool community it serves. Recommendation: Adopt proposed Council Policy D -5. Council Policy D -5 July 28, 2009 Page 5 recommended procedures for laws affecting website speech for the City that benefits the Environmental Review: This is not a project under CEQA. Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). It was posted at City Nall and on the City's website. Funding Availability: No funding is necessary. Alternatives: The Council may choose not to take the action recommended or instruct staff to consider alternatives for Council's consideration. Prepared by: Catherine Wolcott, Deputy City Attorney Attachment A: Proposed Council Policy D -5 Submitted by: T'ara Finni n Public Information Manager ATTACHMENT A Adoption of Council Policy D -5 Proposed Council Policy D -5 CITY WEBSITES Purpose D -5 The City of Newport. Beach ( "City ") websites have been.created and maintained for exclusive use by the City in communicating information relevant to the City's mission to the public. The City websites are not public fora for debate or discussion of controversial issues or topics. The purpose of the City's websites is to provide timely information about City services, officials, programs, projects and events to the local community and the general public. The City exclusively controls the content of all City websites. 1. External Links. The City of Newport Beach website may provide hyperlinks (hereinafter "links ") to external websites that provide additional information on selected topics. Links shall be posted at the City's sole discretion, and shall not be posted at the request of third parties. The City Manager has overall responsibility for determining which individual links to third party websites shall be posted. Department Directors shall submit recommendations to the City Manager's Office to post links they believe are consistent with the purposes and provisions of this policy. The City Manager or his designee shall review all Department recommendations to post specific links, and shall publish links only when they: (1) are determined to fall within the categories described below, and /or (2) are determined to be consistent with the purposes of this Policy as stated above. All links approved by the City Manager's Office shall be reviewed by the Office of the City Attorney. No external links shall be construed as an endorsement of, and the City of Newport is not responsible for, the content of any such external websites. An external link is not intended to create a designated or limited public forum on any portion of the City website. If the City decides to post an external link on one of its websites, the City alone shall determine how, when and where links are located on its website. A. The City Manager or his /her designee may approve links within the following categories: 1. Other government agencies; 2. Firms with franchise agreements with the City, such as for utilities, cable TV and /or intemet service, waste removal and other similar companies which provide service to residents of the City under agreement with the City; 3. Links to corporate or company sites that provide web -based automated solutions specifically designed for use by the City and /or the public through the City website. These applications may be hosted internally or externally; 4. Organizations in a direct contractual relationship with the City, that receive funding in the form of either monetary or in -kind contribution from the City to promote the economic and cultural development of the City, in areas such as commerce, dining, tourism, and arts and entertainment within the City; 5. For the Newport Beach Public Library ( "Library") website, and /or any section of the City website used for Library purposes, links that support the Library's mission to meet the cultural, educational and informational needs of Library customers. B. The City website shall not include links to websites that: 1. Promote or exhibit hate, bias, discrimination, "adult- oriented" material or material not suitable for viewing by persons of all ages, or material with libelous or otherwise defamatory content; 2. Advocate the agenda or position of a political party, candidate for elected office, ballot initiative, or campaign or fundraising websites of holders of or candidates for political office (whether elected or appointed), unless (1) the link is to a website that contains only speech the City wishes to adopt as its own, as indicated by an action adopted by Council, and (2) no violation of Government Code Section 54964 (prohibiting expenditures of public funds on any communication that expressly advocates approval or rejection of a clearly identified ballot measure, initiative or candidate certified to appear on a local ballot) is reasonably likely to result. No linked website shall post communications on its homepage that expressly advocate the approval or rejection of a clearly identified ballot measure or candidate certified to appear on the local ballot; if it does so the City shall remove the link from the City websites immediately. The City websites shall remain consistent with federal policies on Gov Internet domains that prohibit references and links to specific websites operated by campaigns and any campaign entity or committee, and websites containing political acronyms or party names. 3. Violate any of the City's equal opportunity policies; and /or 4. Are personal in nature and are operated by individuals. (This, category shall include all blogs and chat groups.) 2 2. Links to the City of Newport Beach Website Permission is not needed to link to the City website; provided that links to the City website do not load into an existing frame and City information is not made to appear as if it is part of the linked website. 3. Privacy The City of Newport Beach utilizes automated tools to log information about each visit to its website. The information collected is used to determine site performance and identify visitor trends such as popular pages and frequently downloaded files. The City of Newport Beach has security measures to limit access to personal information submitted via its website. Any information regarding an individual that is collected will be used by the City only for the intended purpose. The City will not disclose this information to any third party, unless required to do so under federal or state law, including, but not limited to, the California Public Records Act. All requests for public records shall be handled in accordance with the provisions of Council Policy E -1. 4. Accessibility The design of the City website shall meet the standards outlined in the U.S. Section 508 accessibility guidelines. 5. Service Marks, Trademarks and Copyright All intellectual and proprietary property rights, including copyrights and rights to service marks and trademarks, as to any and all text, material, images and /or content appearing on or accessible through the City website, belong to the respective owners of these rights. The City owns all other intellectual and proprietary property rights, including copyrights and rights to service marks and trademarks, as to the City Seal, all City logos, symbols, emblems, and any and all other images, designs, content and materials created by or on behalf of the City that appear on or are accessible through the City website. No person or entity shall: modify and or use the text, images or other City website content from a web server; distribute the City's web content; or "mirror" the City's information on a non -City server without written permission from the City Manager or his designee. 6. E -mail, E -mail Subscription Lists and Communication with the City Information that allows for the personal identification of a website user contained in a communication sent to the City in an e-mail message or in an online form submitted to the City will be used by the City to respond to the request. The City may redirect the message to another City department or person who is in a better position to answer the question. K3 The City websites provide users the opportunity to subscribe to and unsubscribe from informational e- mailing lists. E -mail addresses will only be used by the City to send messages related to categories of information requested by the subscriber. To the extent authorized by law, information from email subscription lists that allows for the personal identification of a website user shall be kept private if the individual submitting the information has indicated a wish that the information remain private. E -mail addresses are not, and shall not be, visible or available to other list members. Communication made through the City website shall in no way be deemed to constitute legal notice to the City or any of its departments, officers, employees, agents, or representatives, with respect to any existing or potential claim or cause of action against the City or any of its departments, officers, employees, agents, or representatives, where notice to the City is required by any federal, state or local laws, rules, or regulations. The City does not accept service of notice or process through its website. 7. Disclosure and Disclaimer Statement While the City endeavors to keep its website content accurate and timely, the City neither warrants nor makes representations or endorsements as to the quality, content, accuracy, timeliness, or completeness of the information, text, graphics, links, and /or other items or material contained on or within the City website, its server or any other server accessible through the City website. Any and all such information, text, graphics, hyperlinks, and /or other items or material are distributed, made available and transmitted "as is ", without warranty of any kind, whether express or implied, including without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose, and any and all such warranties are expressly disclaimed. Disclaimer of Liabilit The City of Newport Beach is not responsible for any special, indirect, incidental or consequential damages that may arise from the use of, or the inability to use, the City website and/or the materials contained on the website. Each website user assumes any and all risks concerning the quality, content, accuracy, timeliness, and /or completeness as to any and all information received. City website information is subject to change without notice from the City as a result of updates and corrections. To the extent permitted by law, commercial use of information, data, material and /or any other content found on or accessible through the City website, is prohibited without the written permission of the City. The City is neither responsible nor liable for any viruses or other contamination of any user's system, nor for any delays, inaccuracies, errors or omissions arising out of use of the City website or with respect to the material contained on the website, including without limitation, any material posted on the website. 0