Pennsylvania Supreme Court Rules That School Board Members’ Social Media Posts Are Not “Records” Under the Right-to-Know Law

John T. Vogel, Esq., jvogel@tuckerlaw.com, (412) 594-5622

Penncrest School District v. Cagle, No. 31 WAP 2023, 2025 Pa. LEXIS 1258 (Trial Court should have considered additional factors, including whether social media accounts were public and whether accounts had “trappings” of an official agency account, before deciding whether school board members’ posts were subject to disclosure.)

Background

Penncrest School District (“Penncrest”) created a display of books in its high school library, several of which addressed LGBTQ+ issues. A third-party contractor photographed the display and posted it to Facebook. Subsequently, a Penncrest Board Member, David Valesky, shared the post on his personal Facebook account and commented that: the display was “totally evil,” it is “not what we need to be teaching kids,” and students “aren’t at school to be brainwashed into thinking homosexuality is okay.” Another Penncrest Board Member, Luigi DeFrancesco, shared Valesky’s post to his personal Facebook account without any additional commentary.

A Penncrest resident, Thomas Cagle, then submitted a request under the Right-to-Know Law (“RTKL”) to Penncrest, seeking, in pertinent part, all “Facebook posts and comments” by Valesky and DeFrancesco “related to homosexuality and Penncrest.” Penncrest denied this request on the basis that no such posts or comments existed on any Penncrest-owned Facebook accounts. On appeal, the Office of Open Records (“OOR”) found that, although the accounts were not District-owned, the accounts were used by the Board Members to discuss Penncrest business. Under these circumstances, the OOR ruled that the posts were public records subject to disclosure.

The trial court affirmed the OOR’s determination and found that, since Valesky was expressing his views on a topic that was within the purview of the Board, the posts were public records subject to disclosure. However, the Commonwealth Court vacated and remanded the trial court’s ruling, finding that it should have considered a host of other factors before reaching its decision. Specifically, the trial court should have examined the social media account itself, whether it was “private or public,” and whether the account had the ‘trappings’ of an official agency account. The trial court also should have reviewed the content of the posts to discern “whether such posts prove, support, or evidence a transaction or activity of an agency.”  

Discussion

The Supreme Court began its analysis by setting forth that the RTKL’s unambiguous language allows for the disclosure of all types of information, including postings on digital platforms, if they are found to document a transaction or activity ‘of an agency,’ and were created, received, or retained pursuant to law or in connection with a transaction, business, or activity of the agency. The Court agreed with the Commonwealth Court’s finding that the trial court’s analysis was insufficient and emphasized that the determination of whether a record is of an agency is a fact-specific inquiry.

The Court noted that little caselaw existed addressing the exact issue of whether public officials’ social media posts are subject to disclosure under the RTKL. But the Court referred to prior Commonwealth Court cases that addressed email communications, acknowledging that an email is not a “record” simply because it is sent and received using an agency email address or by virtue of their location on an agency-owned computer. Instead, courts must examine the surrounding circumstances to determine whether such information is “of an agency.” This is particularly important since school board members are often part of their local communities, and district issues are frequently interwoven with multiple facets of members’ lives.

Cagle argued that the Commonwealth Court impermissibly created a “social media-specific test” which is contrary to the RTKL’s language because the statute contains only a single definition for the term “record.” The Supreme Court, however, disagreed: in the Court’s view, Commonwealth Court’s analysis was not novel and unfounded because many of the factors articulated in its opinion had been considered in various other RTKL cases involving other types of information.       

Practical Advice

The Penncrest ruling is certainly a win for the privacy of public officials. However, public officials should still exercise caution with social media posts on personal accounts. The Court did not hold that all posts on a public official’s personal social media account cannot ever be disclosed under the RTKL. Instead, the Court emphasized that surrounding circumstances need to be examined to determine whether the posts are “records” for RTKL purposes. One factor the Court repeatedly referenced was whether the account has the ‘trappings’ of an official agency account. Thus, if a public official routinely uses their personal account for posting about agency business, such posts may be subject to disclosure. Additionally, the Court indicated that the public or private status of an account/post is relevant. If a public official is posting about agency business and the posts are available to the general public, it is more likely that such posts would constitute records under the RTKL. The result may be different, however, if such posts were communicated to a limited audience.

If you have questions about how the Penncrest decision affects your district’s RTKL obligations or your officials’ social media practices, contact John Vogel at (412) 594-5622 or jvogel@tuckerlaw.com.