Public Posting: Penncrest, Boyer and the Release of Social Media Under the RTKL
Penncrest attempted to develop an analysis for agencies and the OOR to utilize to determine when records related to social media pages are or are not "public records" under the RTKL. Boyer shows that these factors are mandatory and apparently here to stay.
August 17, 2023 at 11:34 AM
8 minute read
CommentaryHave Facebook and TikTok become the new forum for conducting political debates by public officials? That's at least one of the questions faced by the Pennsylvania Commonwealth Court in two recent decisions, Penncrest School District v. Cagle, 293 A.3d 783 (Pa. Cmwlth. 2023), and Wyoming Borough v. Boyer, No. 715 C.D. 2021 (Pa. Cmwlth. July 27, 2023). As public engagement continues to move "online" the topic of how to treat public officials' emails, text messages and social media pages has become a hot button topic. Earlier this year, in Penncrest, the court considered what to do about these developing issues. In a June 2021 RTKL request, the requester in Penncrest sought Facebook posts and comments "related to homosexuality and Penncrest School District, its officials, employees, or students or its curriculum, physical resources, or electronic resources … including posts or comments removed" or deleted by two specific members of the school board for a specific time period. The respondent district denied the request on the basis that no such posts or comments existed for any Penncrest-owned Facebook accounts. On appeal, the OOR determined it was immaterial as to whether the agency controlled the Facebook page, but that it would review the contents of the page to determine whether it was used as a significant platform by an elected official or employee to conduct or discuss official business. The lower court affirmed and reasoned it did not matter if the posts were made on the district's Facebook account or a member's private account. The court reasoned that the posts became a "record" if created by persons acting as school board members and if they contained information related to school business.
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