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A recent court decision raised the bar for when a government official’s personal social media posts are public records, and will likely make it more burdensome and costly for Pennsylvanians to get their hands on this information.
In an April opinion, Pennsylvania Commonwealth Court established a three-factor test to judge when social media posts made on public officials’ personal accounts should be accessible under the Right-to-Know Law.
Government agencies, the Office of Open Records, and the courts have the power to decide what records should be provided to the public. The test guides them to first examine the social media account in question, including its private or public status, its appearance or purpose, and any actual or apparent duty for public officials to operate it.
The court said agencies that receive open-records requests also should consider the contents of the account, if they “prove, support, or evidence a transaction or activity of an agency.”
The third factor to weigh is whether the person operating the account is acting in what the court calls their “official capacity.” Commonwealth Court cited a previous opinion that found a York Township commissioner’s emails on a personal computer weren’t public records because the township didn’t ratify, adopt, or confirm what the emails discussed.
“This is such a significant opinion because it is, in my opinion, a change of the law as it’s been developing,” Josh Bonn, an attorney practicing in open records and municipal law, told Spotlight PA.
A generally accepted interpretation prior to the April decision was that anytime a public official communicates about public business, “that’s presumed to be a public record.” Bonn said he felt the weight given to the official capacity factor in the court’s newly minted test was a departure from that rule of thumb.
The Office of Open Records — an independent agency that handles disputes over public record requests — had previously ruled that the contents of a social media account decide if they should be public records, and whether a government agency authorizes or controls those accounts was “immaterial” to the question.
All three factors should be assessed in a nonexclusive manner, the opinion said, meaning the agency or court tasked with deciding a record request can determine on a case-by-case basis how much weight each of the elements should carry. Legal experts said that leaves a lot of room for argument, and more litigation on this issue is likely on the horizon.
“There can be a lot of different permutations of how these accounts can be used, and this test allows those different permutations to be reviewed,” Bonn said. He added that Commonwealth Court performed a detailed analysis of relevant case laws in its opinion, and the matter is far from settled.
Courts and government officials nationwide are trying to determine the boundaries between official and personal speech on social media. Commonwealth Court Judge Lori Dumas acknowledged in the opinion that it’s an evolving legal issue, writing “this Court’s precedents are in apparent tension.”
“It will be important for agencies to remember that when in doubt, they should err on the side of openness because the [Right-to-Know] law favors access,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.
“Social media often provides an unfiltered window into public officials’ stance on important issues, and the public has a right to know where their elected officials stand,” she said.
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