PA Supreme Court Creates New Test for Social Media Posts Under Right-to-Know Law

The Pennsylvania Supreme Court will now allow agencies to deny access to certain social media posts on the basis of their context, under the state’s Right-to-Know law. This decision is a significant departure from the previous content-only standard for all records.

Government agencies and the media need to be aware of these significant changes, which Obermayer’s Transparency and Public Data Team evaluates here.

The Penncrest case

In Penncrest School District v. Cagle, the Supreme Court for the first time has adopted a new multi-factor test that evaluates the context of a communication. As a result, obtaining social media posts from agencies under the Commonwealth’s open records law may prove more difficult. Conversely, parties seeking to prevent disclosure now have additional opportunities to prove that social media content is not public.

Whether intentional or not, the Penncrest case has created a separate and more rigorous test for social media than for all other kinds of records. While the records at issue in the Penncrest case are Facebook posts about LGBTQ+ books displayed at the high school during Pride Month made on the personal pages of two school board members, the Court’s holding indicates that this new test should be used for all social media.

It is not yet clear if this test could or will be applied to other kinds of digital, virtual, meta, or other forms of communications. Penncrest is a big case, but one we believe a future Court will inevitably revisit or clarify. In the meantime, please reach out to Obermayer’s Transparency Team with your questions or concerns.

Read on for specific details from the Penncrest case:

The four-justice majority, in an opinion written by Justice Mundy, affirms the use of the well-settled two-part test for determining whether a record is public, that is taken directly from the definition of a public record under the Right to Know Law:

1. Information that documents a transaction or activity of an agency; and
2. Is created, received, or retained pursuant to law or in connection with a transaction, business, or activity of the agency.

For social media posts, however, the Court announced that other factors may be considered. Justice Mundy characterized these factors as “reasonable facts that warrant consideration when resolving whether a social media post constitutes an agency record.” In fact, the Court effectively created a new, three-prong test specifically for social media, as follows:

1. An examination of 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.
   • Consideration of whether the person posting 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.
   • Examine the universe of responsive posts.
2. In examining the social media posts, consider whether such posts prove, support, or evidence a transaction or activity of an agency.
   • The content of the posts may be reviewed to address whether the posts were merely informational in nature, i.e., did not directly prove, support, or evidence the agency’s governmental functions.
     • Determine whether the posts were created, received, or retained by law or in connection with a transaction, business, or activity of an agency.
   • Consider “official capacity” with regard to the account and the posts.
     • Was the information at issue produced under the agency’s authority or subsequently ratified, adopted, or confirmed by the agency, i.e., authorized activity, scope of employment as a public official?
     • Did the agency require, direct or further the posts?

Whether  are you are a government agency, a media organization or a corporation, the laws governing access to government records and proceedings are complicated. Obermayer’s Transparency Law and Public Data Practice – Terry Mutchler, Corinna Wilson and Erika Silverbreit – are leading attorneys in the field, who can help you navigate this complex legal landscape. 

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This alert is intended to notify its readers of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.