Public officials frequently discuss issues of public concern on their personal social media accounts. The Pennsylvania Commonwealth Court recently addressed whether such social media posts are public records under the Pennsylvania Right-to-Know Law. Penncrest School District v. Cagle, ___ A.3d ____, No. 1463 C.D. 2021 (Pa. Commw. April 24, 2023). The court established a three-factor test to determine if social media posts by public officials on their personal accounts are public records.
In Cagle, two members of the Penncrest School Board publicly shared a Facebook post on their personal Facebook accounts criticizing an LGBTQ+ display at the high school library. A newspaper published an article about their posts, and one of the board members stated that he would bring the matter up at the next board meeting. However, the posts were subsequently made private or removed, and the board never put LGBTQ+ rights on its agenda. Nonetheless, hundreds of citizens attended the next four board meetings and publicly debated the treatment of LGBTQ+ students and related school district policies.
While debate raged, an individual submitted a public records request to the school district, seeking LGBTQ+ related Facebook posts and comments from the board members’ personal Facebook accounts. The school district denied the request by asserting that nothing had been posted on district-owned Facebook accounts. The requester appealed.
Both the Pennsylvania Office of Open Records (OOR) and the Crawford County Court of Common Pleas held the Facebook posts were public records, even though the board members used personal social media accounts. The OOR noted the board members had discussed the LGBTQ+ book display in a public meeting. In the court of common pleas’ opinion, the board members created a public record by publicly expressing their opinions on topics within the school board’s purview.
The school district appealed to the Pennsylvania Commonwealth Court seeking to block access to the Facebook posts. The school district asserted: (i) the Facebook posts were unrelated to school board business, (ii) the board members were expressing their views as private citizens rather than as public officials, and (iii) public comment by non-board members did not transform the Facebook posts into public records.
The Commonwealth Court issued a 4-3 decision. The majority adopted 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, emphasizing that the court of common pleas was free to reach the same decision if the three-factor test weighed in favor of public disclosure of the Facebook posts.
The majority adopted the three-factor test due to perceived tension in both Pennsylvania and federal court precedent involving the public nature of communications by public officials. One line of Pennsylvania cases held that emails discussing agency business are presumptively public records, while another line of Pennsylvania cases held such emails are public only if they were authorized by the collective authority of the governing body. Federal courts are split on whether social media posts by public officials on private accounts constitute state action for purposes of civil liability.
The three-factor test is non-exclusive, meaning courts may deem that social media posts are public even if they do not meet all three factors. Courts have wide latitude to give each factor whatever weight they deem fit in deciding if the totality of circumstances weigh in favor of public disclosure.
First, courts are to examine the social media account itself, including the public or private status of the account, as well as whether the account has the “trappings” of an official account. This can be determined by considering if the public official has an actual or apparent duty to operate the account, and if the account is used primarily to communicate public business.
Second, courts are to examine if the social media posts prove, support, or evidence a transaction or activity of the agency, and if the posts were created, received, or retained by law or in connection with a transaction business, or activity of an agency. Posts that are merely informational in nature do not directly prove, support, or evidence the agency’s government functions.
Third, courts are to consider “official capacity”—whether the social media posts were produced under the agency’s authority or subsequently ratified, adopted, or confirmed by the agency. Social media posts must be created, received, or retained in their official capacity, i.e., scope of employment, as public officials. Courts must weigh if the agency required the posts, the agency directed the posts, or if the posts furthered the agency’s interests.
So, considering this three-factor test, how can a member of the public, or even an agency solicitor, determine if a social media post is public or not? It is difficult to gauge if a public official is swaying public policy via public statements, even if the agency does not officially document such statements as a basis for an agency action. The three-factor test is highly dependent on factual determinations by each individual judge, meaning levels of access will vary throughout the state or even from courtroom to courtroom. Furthermore, the Commonwealth Court did not address if the requester or the agency bears the burden of proof under the three-factor test, although prior caselaw suggests the requester bears the initial burden to establish a social media post is a record documenting an activity of the agency before the burden shifts to the agency to prove if any exemptions from public disclosure apply.
The Commonwealth Court’s decision will have a major impact on access to public records in Pennsylvania. Prior to this decision, the Commonwealth Court had distanced itself from the official capacity factor, instead focusing on whether a public official was discussing public business. The reinvigoration of the official capacity factor may cut off public access to a host of communications that have been publicly disclosed over the past decade. It will also be more expensive and time-consuming for citizens and media to access such communications-even if they are deemed public. Public officials should be aware that their social media posts may be deemed public, even if they are posted on personal accounts, and that they may expose the agency to civil liability for First Amendment violations if they block or censor comments. Caselaw will continue to develop to address the different factual circumstances arising from various ways public officials use of social media.
For more information, please contact Nauman Smith’s Right-to-Know Law Practice Group. Nauman Smith’s attorneys represent businesses, individuals, and government agencies in public records appeals throughout Pennsylvania. They have secured numerous precedential decisions in public records matters before the Pennsylvania Supreme Court and the Pennsylvania Commonwealth Court.