A school board member's Facebook post about an LGBTQ book display at a Pennsylvania high school library similar to the one pictured here led to a public records case that could make it harder to access public official’s social media posts.
If a public official or employee in your town posted racist comments about students at the school where they work, an offensive rape joke when discussing the president, or an expletive-laden rant in response to a constituent, wouldn’t you think you have a right to know about it? Unfortunately, if you live in Pennsylvania, it just got harder to exercise your right to learn about — and report on — public employees’ social media activity. A recent decision by a Pennsylvania appellate court raises the bar for public records requests for social media posts made on officials’ personal accounts, even when they are about public business.
The decision in Penncrest School District v. Cagle establishes a complex three-part test for determining when social media posts made by public officials on their personal accounts are public records under the state’s Right-to-Know Law. The test requires courts to examine whether the social media account has indicators of an “official” status, whether the posts “prove, support, or evidence a transaction or activity of an agency,” and whether the public official acted in their official capacity in creating, receiving, or retaining the posts.
The case involved a request for Facebook posts and comments made by two Penncrest School Board members about LGBTQ issues and the school district. The request was spurred by school board members’ social media posts about a display of LGBTQ books at a local high school library. The display and posts were also discussed at school board meetings.
As one Pennsylvania attorney told Spotlight PA, the appeals court’s decision is a significant change to Pennsylvania law, which had previously been interpreted to presume that a record is public “anytime a public official communicates about public business.”
In contrast, the test the appellate court lays out requires records requesters to satisfy multiple factors, some of which seem contrary to the Right-to-Know Law’s presumption of openness.
For example, the appellate court identified two indicators that suggest a social media account has “official” status: if the account has the “trappings” of an official agency or if that official has a “duty” to run it. Officials may be able to circumventing public records laws, then, by purposefully using a social media account that appears personal or unofficial. Officials are far more likely to let their guards down and speak frankly on their personal accounts — especially when compared to bland talking points likely to be found on an official account — but the court’s test makes it harder to access these often highly newsworthy statements.
The appellate court also says that lower courts must consider all three of the factors laid out in its decision, but allows them to assign different weights to each factor on a case-by-case basis. This means that a court could deny a requester access to social media records even if they prevail on most of the factors, if the court decides that a single factor outweighs the others. A judge who is inclined to keep a newsworthy post out of public view can almost always find a way to do so under such a loose and subjective standard.
Making it harder for Pennsylvanians to access records of social media posts by government officials is a move in the wrong direction. There’s already a long and unfortunate history of officials attempting to evade public records laws by using personal email accounts or text messages. Thankfully, many courts and public agencies have recognized that government business conducted through personal email accounts or texts on personal devices still creates a public record subject to freedom of information laws. The same principle should apply to social media: Regardless of where government officials discuss or conduct government business, the public should have access to the records.
Of course, it may be difficult for governments to retain and produce social media posts made on officials’ private accounts. That difficulty, however, does not excuse them from their obligation to do so. Governments can address this issue by establishing social media policies that direct all employees to limit posts about government business only to official social media accounts or by requiring officials to maintain records of their personal accounts if they post about public business.
Pennsylvania is not the only state to consider whether public officials’ posts on their personal social media accounts are public records. For example, in 2018, a Washington appellate court explained that social media posts on a personal page are public records if they relate to the conduct of government and are prepared by a government employee “acting in her official capacity, conducting public business, or otherwise furthering the [government’s] interests.” This more straightforward analysis is less likely to lead to lengthy litigation that can stymie public records requests and allow governments to withhold records about the conduct of public business from the public.
Public officials’ use of personal social media accounts also raises other legal questions. The Supreme Court recently agreed to hear two cases about whether public officials can block people from their personal social media accounts that they use to communicate about government business. Both cases are about lower-level government officials, but they echo the issues in the case challenging then-President Donald Trump’s blocking of critics on Twitter, which the Second Circuit said violated the First Amendment. The Supreme Court’s decisions will have important ramifications for journalists, whom public officials sometimes block on social media, and interpretations of the First Amendment more broadly.
As more and more government business is done online, journalists will have to continue to grapple with how to cover public officials’ use of social media for government business, whether by fighting attempts to block them or wresting public records from the digital sphere. Courts, too, will have to apply the First Amendment and public records laws that were written before the advent of the internet, let alone social media, to determine what limits there are on blocking and what disclosures the law requires.
Ultimately, public records laws are meant to shed light on government, not conceal government activity. If courts won’t protect public access to officials’ online statements on government affairs, then legislatures must act to update the laws for the digital age and preserve the public’s right to know.
