Penncrest School District. v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023). The Commonwealth Court of Pennsylvania establishes a three-part test that must be used to determine if an individual’s social media post is a record of an agency and, therefore, subject to an RTKL Request.
BACKGROUND
In May 2021, a high school library in Penncrest School District displayed at least six books addressing LGBTQ+ issues in anticipation of Pride Month. An individual photographed the displayed books and then publicly posted the photograph on their own Facebook page and stated: “Hey Maplewood/PENNCREST parents…just a little pic of what is on display at Maplewood High School Library… I realize this makes me a hater, but I am totally ok with that label.” One member of the Penncrest school board, David Valesky, then publicly shared that post on his own personal Facebook page along with the following statement: “This is on display at Maplewood High School. Besides the point of being totally evil, this is not what we need to be teaching kids. They aren’t at school to be brainwashed into thinking homosexuality is okay. Its [sic] actually being promoted to the point where it’s even ‘cool.'” Another school board member, Luigi DeFrancesco publicly shared the original post on his own personal Facebook page without comment.
In June 2021, Thomas Cagle submitted a request for records under the Pennsylvania Right-to-Know Law (“RTKL”) seeking Facebook posts and comments “related to homosexuality and Penncrest School District, its officials, employees, or students, or its curriculum, physical [resources], or electronic resources, between January 1, 2020[,] through June 13, 2021, including posts or comments removed or deleted by Valesky and DeFrancesco.” The District denied the Request, asserting that no such posts or comments existed on any District-owned Facebook pages.
On appeal, the Office of Open Records (“OOR”) ruled in favor of the Requester and found that Valesky and DeFrancesco’s posts on their own Facebook page were records of the School District. In ordering that the records be provided, the OOR determined that it was “immaterial” as to whether the District controlled the Facebook page. Instead, the OOR reviewed the contents of the Facebook page to determine whether it was used as a significant platform by an elected official or employee to conduct or discuss District business. The Trial Court affirmed, stating that posts on private Facebook pages can become a “record” if they are created by persons acting as board members and contain information related to District business.
DISCUSSION
In deciding this case, the Commonwealth examined how the RTKL defines “record” including how a “record” must document a transaction or activity of an agency, examined how the disclosure of social media activity has been handled under the RTKL and other statutes, and then developed a test for this and future cases.
As a result of this analysis, the Court concluded that in resolving whether a school board member’s social media post was “of an agency” under the RTKL, courts must consider three nonexclusive factors. In a footnote, the Court explained that while future courts must consider every factor, those courts could decide how much weight to give each factor.
First, courts must examine the social media account itself, including the private or public status of the account, as well as whether the account has the “trappings” of an official agency account. As part of this analysis, courts must also consider whether the school board member has an actual or apparent duty to operate the account or whether the authority of the public office itself is required to run the account.
Second, in examining the school board member’s social media posts, a court must consider whether such posts prove, support, or evidence a transaction or activity of an agency. In resolving this factor, the content of the posts may be reviewed to address whether the posts were merely informational in nature, i.e., did not directly prove, support, or evidence the agency’s governmental functions. See 65 P.S. § 67.102 (defining a record as information documenting a transaction or activity of the agency). The court must also address whether the posts were created, received, or retained by law or in connection with a transaction, business, or activity of an agency.
Third, the court must consider the account and posts were made in the official’s “official capacity.” In other words, the information at issue must be created, received, or retained by public officials in their official capacity, i.e., scope of employment, as public officials. Under this factor, the court may consider whether the agency required the posts, the agency directed the posts, or whether the posts furthered the agency’s interests.
After establishing this new test, the Commonwealth Court concluded that the Trial Court erred in: 1) holding that it “does not matter” if the social media post was on a public or private account; and 2) suggesting that merely because a board member expressed his views about board business in a social media post, he created a public record. Instead, the case was remanded to the Trial Court with instructions to determine if the posts were made by the board members while acting in their “official capacity” by analyzing the three factors established by the Commonwealth Court.
PRACTICAL ADVICE
Many people, including elected officials, have personal social media accounts and members of the public frequently want to view what is said on these accounts. The Penncrest decision provides necessary guidance for any School District and school board members to analyze whether their posts are public records and subject to an RTKL request. Nevertheless, each Facebook post is different and school districts should work closely with their solicitor to determine whether a social media post made by a school board member is a record of the School District.
