As public officials are increasing their use of social media, the boundaries of what is considered public and private on such accounts is being explored in the courts. For instance, the Court of Common Pleas of Monroe County, recently affirmed a decision of the Office of Open Records (OOR), which held that a Facebook page originally created by an individual while campaigning for borough council but later repurposed for official borough communications was a public record under the Right-to-Know Law, Ford and The Boro v. Mount Pocono Borough.
The editor of a local newsletter requested that the borough produce records logged under the “Moderate Group” tab of the Facebook Group “Mount Pocono Borough Updates by Council.” The borough denied the request because the Facebook Group was created by a private individual. Although that individual continued to use the Facebook Group to discuss borough activities after she was elected to public office, the borough alleged that the Facebook page was not a borough record because council never enacted a resolution to formally approve council members’ use of the Facebook page. The requester appealed to the Office of Open Records (OOR), arguing that that the Facebook Group (including the administrative log showing activities such as deletion of comments) became public when council members started using the Facebook Group to discuss official Borough activities. The OOR agreed with the Requester and ordered the borough to disclose the requested records.
The borough appealed to the court of common pleas. The court discussed that the purpose of the RTKL is to “promote access to government information in order to prohibit secrets, permit scrutiny of the actions of public officials, and make public officials accountable for their actions.” The court agreed with the OOR’s determination that the content of the Facebook Group is a public record of the borough even though the group was not made through the passage of a resolution by the Council.
The Facebook Group was originally created for campaign purposes by an individual who was later elected to council and became borough council president. Although it was not created for a public purpose, the court nonetheless held that the administrative logs from the page were indeed public records. As this decision underscores, understanding the line between what is considered a public record and what is not is critical for municipalities responding to Right to Know requests.
The court first determined the Facebook Group was a “record” of the Borough under the RTKL, which defines a record as “information, regardless of physical form or characteristics, that documents a transaction, business or activity of the agency. The term includes… information stored or maintained electronically and a data-processed or image-processed document.” What is considered a record is liberally construed by the courts to follow the remedial purpose of the law. A Facebook group, even if it is not sanctioned or created formally by a government body, is still a record of official business when it is a source of information on “economic development, community planning, maintenance, public safety, and community service projects within the Borough.”
There is a presumption that a record within the possession of a Commonwealth or local agency (e.g. a borough, township, city, county, etc.) is a public record. There are exceptions to what is considered a public record, even when it was created or maintained by a covered agency. Some of these exceptions include whether the record was created as part of an internal deliberation of the agency, or whether its disclosure would present safety issues. The borough in the above case simply argued that the Facebook Group was not a public record because it was not formally created by an agency. It did not present evidence establishing that it met any other exception. Because members of the Council posted in their official capacity “regarding matters concerning planning, maintenance, and community service projects,” and this is what made it a public record despite its lack of formal sanction.
The court’s decision regarding the public nature of the Facebook Group has First Amendment implications. The Court of Appeals for the Second Circuit held, for instance, that former President Donald Trump could not selectively block Twitter followers with whom he disagreed because the space was found to be an interactive space and public forum. Excluding users from that space was held to be discrimination of a particular viewpoint in violation of the Constitution as an impermissible infringement on free speech. Because Trump had used the Twitter account to share official statements, it became a public forum from which he was not permitted to exclude those viewpoints with which he disagreed. The United States Supreme Court vacated the Second Circuit’s decision as moot after Trump left office. The First Amendment implications remain unresolved because the Supreme Court did not address the merits of the Second Circuit’s decision.
With the expansion of social media as a platform for governmental officials and its use as a means for intergovernmental communication, it is essential that officials recognize when social media becomes a public forum for constituents from which they may not be excluded, and when a social media page becomes a public record. More of these types of cases are sure to follow.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.