Does Pennsylvania’s Right to Know Law require the disclosure of school board members’ social media posts relating to school library displays?
Penncrest Sch. Dist. v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023), allocatur granted Dec. 4, 2023, appeal docket 31 WAP 2023
Thomas Cagle submitted a request to the Penncrest School District pursuant to Pennsylvania’s Right to Know law (RTKL) seeking disclosure of posts and comments made by members of the school district’s board on the board members’ private Facebook pages. Commonwealth Court summarized the background leading to the request as follows:
In May 2021, a high school library in Penncrest displayed at least six books addressing LGBTQ+ issues in anticipation of Pride Month. A third party photographed the displayed books and then publicly posted the photograph, apparently on that person’s own Facebook social media account. Cagle’s Answer to Pet. for Judicial Rev. (Answer), 10/27/21, Ex. C. The third party purportedly commented, “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…[.]” Id. (ellipses in original).
David Valesky (Valesky), a member of the Penncrest School Board (Board), then publicly “shared” the post on his own personal Facebook account with an additional comment. Id.; Penncrest’s Reply to Cagle’s New Matter, 11/3/21, ¶ 35. Valesky commented: “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.’ ” Answer, Ex. C. Subsequently, Luigi DeFrancesco (DeFrancesco), President of the Board, publicly “shared” the third party’s original post without comment on DeFrancesco’s own personal Facebook account. Id., Ex. D.
A few days later, a local newspaper published an article about the above social media posts. Office of Open Records (OOR) Op., 8/24/21, at 5-6. The article stated that Valesky intended to bring the matter up at the June 2021 Board meeting. Id. at 8.
In June, Cagle requested 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. Pet. for Judicial Review (Pet.), 9/16/21, Ex. A, at 2; see also id. at Ex. C, at 1 (alleging that the “posts and comments were later made private or removed”). In support, Cagle argued that the “issue of treatment of LGBTQ+ students and related [Penncrest] policies quickly became an important topic of public and official debate at the next four public meetings of the” Board, which were attended by hundreds of citizens. Id. at Ex. C, at 1. Penncrest countered that “LGBTQ+ rights … were not” and have not been on the Board’s agenda. Id. at Ex. D; OOR Op. at 7 (same).
Slip op. at 1-3. Penncrest denied the request on the basis that no posts or comments existed for any Penncrest-owned Facebook accounts. Cagle appealed to the OOR. The OOR ruled in favor of Cagle, relying on Purdy v. Borough of Chambersburg, No. AP 2017-1229, 2017 WL 3587346 (Pa. Off. Open Recs., filed August 16, 2017), and Boyer v. Wyoming Borough, No. AP 2018-1110, 2018 WL 4293461 (Pa. Off. Open Recs., filed September 5, 2018), appeal filed, (Pa. Cmwlth., No. 715 C.D. 2021, April 16, 2021). As Commonwealth Court summarized:
Per OOR, those decisions provided a framework for resolving “whether a Facebook page is a record of the agency.” Id. OOR explained that it was “immaterial” as to whether the agency controlled the Facebook page. Id. Rather, OOR reviewed the contents of the Facebook page to determine whether “it is used as a significant platform by an elected official or employee to conduct or discuss official business ….” Id. OOR noted that although the LGBTQ+ book display was not on the Board’s agenda, the Board discussed the display in June 2021. Id. at 8.
Slip op. at 4. Penncrest appealed to the court of common pleas, which held argument during which:
the parties disputed whether Cagle’s requests were directed to the personal social media accounts of Valesky and DeFrancesco, as at that time, Penncrest “did not have its own … social media page.” N.T. Hr’g, 11/16/21, at 4-5, 11. Cagle argued that at the time, Board members “made Facebook a significant platform for discussing [Penncrest] business, and they regularly post[ed] that … business on Facebook.” Id. at 13.
Id. The trial court affirmed the OOR, reasoning that it:
does not matter if a Facebook post was made on the [Board’s] Facebook [account] or on the … member’s private Facebook [account]. These posts can become a ‘record’ if they are created by person(s) acting as a [Board] member and contain information related to” school business. Trial Ct. Op., 12/16/21, at 3. The trial court also reasoned that because Valesky was expressing his views about a topic within the Board’s purview, he “created a public record” subject to the RTKL. Id. at 4.
Slip op. at 4-5. Penncrest appealed to Commonwealth Court raising three arguments: (1) that the social media posts and comments made to or from the Board members’ personal social media accounts are not related to the business of the Board or Penncrest; (2) that Board members acting in their capacity as private citizens are able to express their personal opinions by posting or commenting on matters of personal interest via their personal social media accounts without creating a record subject to disclosure; and (3) that public attendees of a Board meeting who opine about the Board members’ social media posts and comments do not create a record.
Commonwealth Court held that common pleas failed to resolve the foundational question of whether the social media activity at issue constituted an agency record subject to disclosure under the RTKL. As to whether social media activity constitutes a record, Commonwealth Court observed that:
Although [RTKL precedent regarding email communications] provide useful guidance, email differs from social media as a method of communication. Cf. Oberholzer, 274 A.3d at 752 (explaining that each medium of expression may require a different analytical framework). Wooden application of principles extracted from our email cases to social media activity may be unwise. See Maloney, 984 A.2d at 486. Accordingly, we examine the disclosure of social media activity under the RTKL and similar statutes, as well as when such activity could be considered official state action.
Slip op. at 13-14. Commonwealth Court noted that while no Pennsylvania court has addressed a RTKL request for records of social media activity, the OOR addressed the issue in Purdy and Boyer, which from Commonwealth Court distilled that:
In both decisions, the OOR examined whether (1) the public official’s page had the “trappings” of an official agency page, and (2) the contents of the posts reflected agency activities or business. See Purdy, 2017 WL 3587346, at *3; Boyer, 2018 WL 4293461, at *4. In addressing whether the posts reflected agency activities or business, the OOR considered the public official’s statutory duties and powers. Boyer, 2018 WL 4293461, at *4.
The OOR’s consideration of a public official’s statutory obligations seemingly reflects two concerns. First, the concern that a request could encompass a public official’s private social media activity using agency resources, i.e., social media activity not documenting an agency’s transaction or business. Cf. Bumsted, 134 A.3d at 1209 (rejecting request for private emails); Baxter, 35 A.3d at 1264 (holding that personal emails using agency resources are not records). Second, the concern that a request for social media activity could encompass unauthorized activity by a public official. See Purdy, 2017 WL 3587346, at *3; Boyer, 2018 WL 4293461, at *4. Accordingly, a request for social media activity must reflect activity produced with the agency’s authority or otherwise ratified by the agency. Cf. Silberstein, 11 A.3d at 633 (denying request for personal emails absent those two conditions); Stearns, 35 A.3d at 97 (compelling disclosure of emails created by public officials in their official capacity). In considering the contours of whether such activity was authorized, we have examined whether a public official had the authority to bind the agency. Cf. Silberstein, 11 A.3d at 633; Mollick, 32 A.3d at 872-73 (opining that emails exchanged between quorum of supervisors may constitute agency business). But cf. Baxter, 35 A.3d at 1264 (holding that although an individual school board member has no authority to bind the board, emails to or from that member in that member’s official capacity may be agency business).
Slip op. at 16-17. Observing that “few [state] courts have addressed the disclosure of a public official’s social media activity in an RTKL context,” Commonwealth Court summarized the analysis applied by the Washington appellate court in West v. Puyallup, 2 Wash.App.2d 586, 410 P.3d 1197, 1199 (2018):
Under Washington law, a public record is “any writing … containing information relating to the conduct of government or the performance of any governmental or proprietary function … prepared, owned, used, or retained by any state or local agency.” Id. at 1201 (cleaned up). Initially, the West Court concluded that social media activity is a form of written communication that can convey information. Id. at 1201-02. Next, the West Court reviewed the public official’s Facebook posts, which “were merely informational and did not directly address” governmental conduct or performance. Id. at 1202. Due to insufficient appellate briefing, the Court presumed that at least some of the posts related to governmental functions. Id.
The West Court then examined whether the council member prepared the posts on her personal Facebook page in her scope of employment, i.e., “prepared by a government agency.” Id. at 1202-03. The Court considered three factors: “whether (1) her position required the posts, (2) the city directed the posts, or (3) the posts furthered the city’s interests.” Id. at 1203 (cleaned up). The West Court stated that although the council member’s posts “referenced various issues” and occasionally linked to the city’s official Facebook posts, they essentially disseminated “general information about the city.” Id. at 1199-1200, 1204. The Court added that the page itself “was used to provide information to [the member’s] supporters.” Id. at 1204. The West Court acknowledged the informational nature of the council member’s posts, but held that any benefit to the city was too attenuated to establish that she “was acting within the scope of employment or her official capacity ….” Id.
Slip op. at 17-18. While Commonwealth Court recognized that the issue of the public nature of social media activity has been addressed by federal courts in a 1983 liability context, the court found a circuit split, explaining that:
Although the federal circuits have attempted to clarify the Section 1983 case law in this novel medium, they have not settled on a uniform framework. The absence of uniformity derives from how each circuit resolves Section 1983 claims. In other words, the circuits’ varied approach to social media activity is less about some profound disagreement and more about each circuit having to adhere to their own unique precedents.
Slip op. at 19. Considering the available jurisprudence, Commonwealth Court held that resolving whether a school board member’s social media post was “of an agency” under the RTKL, requires consideration of the following nonexclusive factors:
- Whether the account has the “trappings” of an official agency account based on an examination “the social media account itself, including the private or public status of the account,” including 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.” As to this factor, the court cautioned:
Focusing only on the trappings of the account, i.e., its appearance or purpose, is likely not dispositive, as we must also examine the universe of responsive posts. Compare Campbell, 986 F.3d at 826 (noting that private social media account occasionally used for official agency activity does not necessarily transform the private account into an agency account), with Garnier, 41 F.4th at 1163 (discussing private accounts that transformed into agency accounts because, inter alia, the vast majority of posts addressed agency activity).
Slip op. at 27-28;
- Whether “such posts prove, support, or evidence a transaction or activity of an agency,” noting that “the content of the posts may be reviewed to address whether the posts were merely informational in nature, e., did not directly prove, support, or evidence the agency’s governmental functions.” Slip op. at 28 (emphasis in original); and
- Whether the information at issue must be created, received, or retained by public officials in their official capacity, e., scope of employment, as public officials.
Commonwealth Court vacated the lower court’s decision and remanded for further fact finding as to the above three factors, concluding that:
Instantly, based on the above, we respectfully disagree with the trial court’s holding that it “does not matter” if the social media post was on a public or private account. See Trial Ct. Op. at 3. We also disagree with the court to the extent it suggested that merely because a board member expressed his views about board business in a social media post, he created a public record. Id. at 4. We hold the court must address, among other factors, whether that board member acted in an “official capacity.” See, e.g., Baxter, 35 A.3d at 1264. Thus, we remand to the trial court, as the initial Chapter 13 reviewing court, to expand the record as it deems necessary to resolve the foundational question of whether the social media activity at issue constitutes an agency record subject to disclosure under the RTKL based on the framework announced herein. See Bowling, 75 A.3d at 476. Nothing within our decision precludes the trial court from reaching its prior holding.
Slip op. at 30.
Judge McCullough, joined by Judges Covey and Wallace dissented, without opinion.
The Pennsylvania Supreme Court granted allocatur to consider the following issue:
Whether the Right to Know Law, 65 P.S. §§ 67.101 – 67.3104, requires the disclosure of school board members’ social media posts on their private Facebook accounts relating to the propriety of a display of certain books in the school library.
For more information, contact Kevin McKeon or Dennis Whitaker.