Pa. Supreme Court Affirms Public May Access Public Officials’ Social Media Posts Under Limited Circumstances

By: Joshua D. Bonn and Aurora Lynd

The Pennsylvania Supreme Court has affirmed a holding of the Commonwealth Court that requires a trial court to weigh additional factors before compelling a school district to retrieve and publicly disclose school board members’ social media posts under the Pennsylvania Right-to-Know Law (RTKL). The divided court struggled to draw a line between what constitutes a public record of a government agency as opposed to a personal communication of a public official. The court refashioned the Commonwealth Court’s test to apply to all forms of electronic communications, ensuring that courts have broad discretion to weigh relevant factors under the unique factual circumstances of each individual case.

In Penncrest School District v. Cagle, ___ A.3d ____ (Pa. 2025), two members of the Penncrest School Board shared a Facebook post on their personal Facebook accounts criticizing an LGBTQ+ display at the high school library. One member also posted a critical comment on Facebook and told the press that he intended to raise the issue at the next board meeting. Shortly thereafter, a local resident submitted a RTKL request to the school district seeking board member Facebook posts or comments related to homosexuality and school curriculum. He alleged that the board members had been using their personal social media accounts to discuss school district business but had subsequently removed or made private such posts.

While both the Pennsylvania Office of Open Records and the Crawford County Common Pleas Court held the Facebook posts were public records, the Commonwealth Court remanded these determinations to direct the trial court to review the evidence under a new three-factor test.

The requester appealed, urging the Pennsylvania Supreme Court to affirm the trial court’s application of a two-part test under the plain language of the RTKL that evaluated whether the social media posts: documented a transaction or activity of the agency, and were created, received, or retained pursuant to law or in connection with a transaction, business, or activity of the agency.

In response, the school district emphasized the role of social media platforms in the digital era, drawing support from the U.S. Supreme Court’s decision in the federal civil rights case Lindke v. Freed, 601 U.S. 187, 144 S. Ct. 756, 218 L. Ed. 2d 121 (2024), which held that “a government official’s posts about job-related topics on social media … is attributable to the state only if the official possessed actual authority to speak on the state’s behalf, and purported to exercise that authority when he spoke on social media.”

The Pennsylvania Supreme Court struggled to balance these competing arguments. The majority opinion, authored by Justice Sallie Updyke Mundy, agreed that the two-part statutory test is appropriate to determine if public officials’ social media posts are public records. However, the majority further found that the three factors elaborated by the Commonwealth Court are appropriate to weigh under the two-part statutory test in determining whether social media posts constitute public records. Accordingly, the Commonwealth Court’s holding was affirmed.

Under Penncrest factors, courts may first 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 may 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. The content of a post is particularly relevant to discerning whether the information evidences a transaction or activity of the agency.

Third, courts may consider “official capacity”—whether the social media posts were produced under the agency’s authority or subsequently ratified, adopted, or confirmed by the agency. Courts may weigh if the agency required the posts, the agency directed the posts, or if the posts furthered the agency’s interests. The majority summed up, “it is necessary to consider … whether a board member is posting his personal views on a private page to a limited audience or if he is publicly discussing business in his official capacity.” It noted the line between such communications is often blurred.

In reaching this decision, the Pennsylvania Supreme Court gave wide discretion to lower courts to weigh each factor based on the specific facts of each case. The majority explained, “certain factors may be pertinent only under a particular set of circumstances when discerning whether information satisfies the RTKL’s two-part test.”

For example, the majority cited several determinations in which the Office of Records compelled disclosure of social media posts on private accounts that public officials used to conduct official business. It also cited a line of Commonwealth Court decisions holding that emails discussing agency business, such as the consideration of a land development plan, are presumptively public records. Notably, none of these decisions employed an official capacity test. The majority seemingly did not find these cases in conflict with other Commonwealth Court decisions that require emails to meet the official capacity test before being subject to public disclosure.

Additionally, the majority held that the Penncrest factors are not exclusive to social media posts. Rather, they should also be applied to emails and other forms of electronic communications, such as text messages and instant messages. There may also be social media cases in which the factors are not relevant.

Justice Kevin Dougherty wrote a concurring and dissenting opinion. He agreed with the result but opined the majority should have scrutinized the factors to give more concrete guidance to lower courts on what constitutes a record “of an agency.” He disagreed that the RTKL only applies to official communications formally endorsed by an agency, but he recognized that the RTKL should not apply to communications with a mere tenuous connection to the agency. He provided his own factors as a middle ground:

• purpose—did the individual intend to perform some government function or otherwise move the governmental objective,
• when and where—did the individual official or employee perform the activity,
• audience—who was the message directed towards,
• job or responsibility—does the activity reasonably relate to their responsibilities, and
• trappings—is the medium for the activity presented as an official action.

Justices David Wecht and Christine Donohue dissented, asserting that the commonwealth’s factors add requirements not found in the RTKL and thus frustrate the statutory mandate to provide liberal access to public records. They cited social media and email decisions that did not rely on the official capacity test but rather focused on the context of the communication (ie., the discussion of agency business). Finding context is key, the dissent would have held that the school board member Facebook posts discussing a LGBTQ+ display at the school library were public records.

Here are the key takeaways from the decision: courts will face multiple scenarios in years to come testing the boundaries of the Penncrest factors. The lines may be blurred in some scenarios. For example, if a school board member posts a picture of their child at an athletic event, that would most likely be private. On the other hand, if they use that same social media post to advocate for the public to attend the next board meeting to support increased athletic funding, such post may be a public record. Another example discussed by the court was Governor Shapiro posting himself eating Uncrustables on Instagram. Courts will certainly be busy reviewing these different scenarios in our digital era.

For public officials, the discussion of agency business, even on private accounts, will likely remain subject to the RTKL. Public officials should remain mindful that deliberation of agency business by a quorum of members of the governing body of an agency, regardless of the medium in which the communication occurs, may only take place at a duly advertised public meeting. Social media is designed to engage users in debate. Individual public officials may engage in online debates with constituents, but the Sunshine Act prohibits a quorum of officials from joining the debate.

For media and other individuals seeking access to public records, you must craft the RTKL request to seek records of an agency. When drafting requests, it is important to identify the transaction, business, or activity that is being discussed in the sought-after social media posts. It is useful to show that the posts are shared among multiple members of the agency in anticipation of upcoming agenda items.

Reprinted with permission from the September 26, 2025 edition of “The Legal Intelligencer” © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.