Pittsburgh, PA

Legal Intelligencer

(by Harley Stone and Anna Jewart)

Have Facebook and TikTok become the new forum for conducting  political debates by public officials? That’s at least one of the questions faced by the Commonwealth Court in two recent decisions, Penncrest School District v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023), and Wyoming Borough v. Boyer, No. 715 C.D. 2021 (Pa. Cmwlth. July 27, 2023).  As public engagement continues to move “online” the topic of how to treat public officials’ emails, text messages and social media pages has become a hot button topic.  Earlier this year, in Penncrest, the Court considered  what to do about these developing issues.  In a June 2021 RTKL request, the requester in Penncrest sought Facebook posts and comments “related to homosexuality and Penncrest School District, its officials, employees, or students or its curriculum, physical [resources], or electronic resources… including posts or comments removed” or deleted by two specific members of the school board for a specific time period.  The respondent district denied the request on the basis that no such posts or comments existed for any Penncrest-owned Facebook accounts.  On appeal, the OOR determined it was immaterial as to whether the agency controlled the Facebook page, but that it would review the contents of the page to determine whether it was used as a significant platform by an elected official or employee to conduct or discuss official business.  The lower court affirmed and reasoned it did not matter if the posts were made on the district’s Facebook account or a member’s private account. The court reasoned that the posts became a “record” if created by persons acting as school board members and if they contained information related to school business.

Penncrest appealed to Commonwealth Court raising three issues: (1) that social media posts and comments from board members’ personal social media accounts are not related to the business of the board or the district; (2) that board members acting in their private capacity as private citizens are able to express their personal opinions by posting or commenting on matters of personal interest via personal social media without creating a record subject to disclosure; and (3) that public attendees of a board meeting who opined about the members’ social media posts and comments do not create a record.

As discussed by the Court in Penncrest, the RTKL defines a “record” as “[i]nformation, 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.” 65 P.S. §67.102.  The Court looked back at its prior consideration of the phrases “documents a transaction or activity of an agency”, “in connection with a transaction, business or activity”, and “of the agency”.  It reviewed its prior treatment of emails of public employees and officials, offering an  interpretation of several  prior holdings related to the same, noting  the  tension between its  decisions in Easton Area School District v. Baxter, 35 A.3d 1259, (Pa. Cmwlth. 2012) and Barkleyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012) and those in Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Cmwlth. 2011) and In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011).  Ultimately, the Court  concluded that strict application of principles extracted from its email cases to social media activity may be unwise and instead opted to examine the disclosure of social media postings  under the RTKL with a fresh lens.

Prior to Penncrest, no Pennsylvania court had addressed a RTKL request for social media postings, so the Court went on to review  the Office of Open Record’s determinations in Purdy v. Borough of Chambersburg, OOR Dkt. No. AP 2017-1229 (Aug 16, 2017) and Boyer v. Wyoming Borough, OOR Dkt. No. AP 2018-1110 (Sept. 5, 2018).  Boyer was on appeal before the Court at the time of its decision in Penncrest and the Court issued a decision on the same, discussed further below, on July 27, 2023.  In both cases, the OOR granted a request for access to social media posts.  In Penncrest the Court attempted to reconcile its own prior decisions related to emails, the OOR’s determinations in Boyer and Purdy, and certain federal case law regarding treatment of social media outside the open records context.

Returning to the definition of “record” the Court in Penncrest determined that to constitute a record the social media postings in question need to meet  three criteria: “(1) it must prove, support, or evidence an agency’s transaction or activity; (2) it must have been created, received, or retained in connection with an agency’s transaction, business, or activity; and (3) must have been  created by, originated with, or possessed by the agency.” The Court grappled with how to apply these criteria, noting that official posts on the agency’s official, authorized social media account are presumptively public; however, if a public official posts about a private matter on the public agency account, those posts likely would not be “records” of the agency.  In Penncrest the issue was a request for a public official’s public post on his personal social media account.  Therefore, the inquiry focused on whether the posts documented a transaction or activity of the school board.

The Court in Penncrest developed a set of nonexclusive factors to determine whether an agency member’s social media post was a post “of the agency” under the RTKL.  First, the court 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, and whether the official 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, it examines the social media posts themselves and then consider whether the posts prove, support, or evidence a transaction or activity of an agency, taking into consideration whether they were merely informational in nature, or were created, received, or retained by law in connection with a transaction, business or activity of the agency. Finally, it must consider “official capacity” with regard to the account and posts, noting that the information must have been created, received, or retained by the public official in their official capacity or scope of employment as public officials, which may be evidenced by whether the agency required the posts, directed the posts, or whether they further the agency’s interest.  The Court in Penncrest remanded to the trial court to expand the record to address whether the social media activity at issue constituted a record under the framework established.

Having utilized the OOR’s determination in Boyer to develop the applicable factors in Penncrest, the Cour then turned around and used the Penncrest factors to decide the requester’s appeal in Boyer.  In Boyer the requester sought records related to a Facebook page named “Joseph Dominick Mayor of Wyoming” including removed or blocked comments; messages sent and received, and posts made to the page or “liked” by the administrator of the page.  The request was deemed denied by the Borough which later clarified that the page was private and the items requested did not exist.  The OOR concluded the page was a “record” of the Borough.  The Court of Common Pleas reversed on the basis that the items requested were not “public records.”  On appeal by the requester, the Commonwealth Court revisited its recent decision in Penncrest.  It determined that Penncrest’s discussion of “official capacity” was particularly instructive in Boyer and found that there were strong implications that Mr. Dominick used the page in an “official capacity” in his role as mayor of the Borough.  However, it concluded that given its reasoning in Penncrest, the cases cited by the lower court did not control its disposition of the appeal in Boyer, and it was required to remand to the Court of Common Pleas for application of Penncrest’s analytical framework.

Penncrest attempted to develop an analysis for agencies and the OOR to utilize to determine when records related to social media pages are or are not “public records” under the RTKL.  Boyer shows that these factors are mandatory and apparently here to stay.  Both Penncrest and Boyer are pending on appeal before their respective courts of common pleas.  How the lower courts apply the Penncrest factors in these cases will hopefully shed some light on how these factors work in a practical sense and whether or not they in fact provide clarity, or further confusion, in the developing area of public figure social media posts under the RTKL.

Harlan S. Stone is a Shareholder in the Public Sector Services and Energy and Natural Resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir.  Anna S. Jewart is an associate in Babst Calland’s Public Sector Services group and focuses her practice on zoning, subdivision, land development, and general municipal matters. Contact them at hstone@babstcalland.com and ajewart@babstcalland.com.

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Reprinted with permission from the August 17, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.