Terry is the Chair of Obermayer’s Transparency and Public Data Practice. She represents pharmaceutical companies, hedge funds, defense contractors, life sciences companies, and medical marijuana companies. A key portion of her practice...Read More by Author
Public or Private Post? Court Establishes A Three-Part Test To Determine if Social Posts are Public Record
Public officials often use their Twitter accounts, Facebook and other social media platforms in both their personal and professional lives. When do their public and personal postings intersect? Do they intersect? If a public official makes a remark about an issue of public concern on their Twitter account – does that Twitter post become a public record under the state’s Right to Know Law?
If you are a public official, or an attorney representing a public body, a recent Commonwealth decision could have a major impact on the way requests for records are processed under the state’s Right to Know Law.
Penncrest School District v. Cagle
The Pennsylvania Commonwealth Court in a 4-3 decision recently tackled this conundrum in Penncrest School District v. Cagle, ___ A.3d ____, No. 1463 C.D. 2021 (Pa. Commw. April 24, 2023). For the first time since the enactment of the RTKL more than a decade ago, the court established a three-part test to determine if social media posts by public officials on their personal accounts are public record. The implications are significant for public officials and the agencies and boards that they serve – whether a school board, a county, a township, a zoning board, or a sewer authority to name a few.
The background of the case stemmed from two members of the Penncrest School Board who publicly shared a Facebook post on their personal Facebook accounts discussing an LGBTQ+ display at the high school library. A newspaper picked up their remarks and one of the Board Members stated that it would be discussed at the next board meeting, which drew hundreds of citizens over four board meetings.
Instead of discussing this at public meetings, the posts were marked private or removed from the accounts. An RTKL was filed seeking the Facebook posts and comments from the board members’ personal Facebook accounts. The school district denied the request, asserting that nothing had been posted on district-owned Facebook accounts. The requester appealed to the Office of Open Records, which ruled the posts were public records and must be released, and Penncrest appealed.
The Crawford County Court of Common Pleas upheld the OOR’s decision and held the Facebook posts were public records, even though the board members used personal social media accounts. This is in line with the definition of a record in the RTKL:
“Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data processed or image-processed document.”
The Court of Common Pleas opinion said that the board members created a public record by publicly expressing their opinions on topics within the school board’s purview.
The District viewed it as personal and having nothing to do with official business. They appealed to the Commonwealth Court seeking to block access to the Facebook posts. The District argued:
- the Facebook posts were unrelated to school board business,
- the board members were expressing their views as private citizens rather than as public officials, and
- public comments by non-board members did not transform the Facebook posts into public records.
The new three-factor test
The majority created a three-factor test for courts to determine if social media posts by public officials on personal accounts are public records. The majority remanded the matter back to the Court of Common Pleas to allow the parties to present additional evidence under the new three-factor test and stressed that the lower court was to feel free to reach the same decision if the three-factor test weighed in favor of public disclosure of the Facebook posts.
Under the test, courts should consider the following:
- Examine the social media account itself. Is the public or private? Is the public official responsible for operating the account?
- Analyze the social media posts in the context of the definition of a record. Does the evidence a transaction or activity of the agency? Posts that are merely informational in nature do not directly prove, support, or evidence the agency’s government functions.
- Consider whether the social media posts were produced under the agency’s authority or subsequently ratified, adopted, or confirmed by the agency, a.k.a. “official capacity.”
A potential problem with the three-factor test is that even if all three factors are not met, a court may deem social media posts public. In short, the test is non-exclusive. This means that courts have wide latitude in deciding whether a social media post is a record under the law. For officials and agencies, this means that these issues are very fact-driven and that boards should consider adopting policies and procedures governing social media posts.
As the founding Executive Director of the Office of Open Records, I wrote the policies and procedures that govern this law. I assist state and local governments, as well as media and corporations, in navigating this often complex area of law by training them on open records laws and establishing best practices for their specific needs.
Terry Mutchler is the Chair of Transparency and Public Data Practice at Obermayer. She is the founding executive director of the Office of Open Records and has handled more than 40,000 state and federal requests for records.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.