Social media is a powerful tool for connecting with constituents. However, the expansion of public discussion through social media encourages an expanded application of the Right-To-Know Law. In an April 2023 case, Penncrest School District v. Cagle, the Commonwealth Court attempted to clarify when a public official’s social media activity would be subject to disclosure. The new test limits the applicability of the Law to social media activity but does not settle the matter, so future litigation will likely clarify the test.

The Right-To-Know Law is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions.” Pennsylvania Department of Education v. Bagwell. Under the Law, an agency must provide access to a public “record” upon the request of a citizen or organization. Pennsylvania law defines a “record” as information in the possession of an agency which either documents an agency’s activity or is created in connection with an agency’s activity.

Prior to Penncrest, various cases addressed the application of the Law to a public official’s personal emails. One such case originated from York County: the emails on a York Township Commissioner’s personal computer were requested, and the Court held that the official’s personal emails were not subject to disclosure unless they were produced with the authority of the Township. However, other cases betray a far less definitive answer to the question of the Law’s application to emails. Other Pennsylvania Commonwealth Court cases indicate that personal emails could be subject to disclosure if they illustrated the deliberations of a public agency or were drafted as part of an official’s professional activities.

Recognizing the inherent distinction between email and social media, in Penncrest School District v. Cagle, the Commonwealth Court created a new test for determining when a public official’s social media posts may be subject to disclosure. The new test requires courts to examine (1) the posting account itself to see if it appears to be an official agency account; (2) the content of the account’s posts to see if they either provide unofficial commentary and personal information or instead attempt to engage the public with the agency; and (3) the official duties of the poster, to see if the poster was acting with the authority of his/her agency.

This final category of investigation into the official duties of the poster presents a shift in the application of the Law. Prior to this case, courts did not consider whether the social-media-posting official was acting pursuant to their professional duties.

This new test limits the likelihood social media posts will be disclosed. However, because the Law favors the disclosure, rather than the exemption, of information, municipal officials should remain cautious when posting commentary related to their agency’s activities on their social media accounts. Future litigation of these cases is all but certain since the new test fails to establish a bright-line rule.

Jeffrey L. Rehmeyer II

Shareholder | Attorney

Jeffrey Rehmeyer II was CGA Law Firm’s President for many years. He is fueled by a belief that planning today creates protection for businesses and families tomorrow. Jeff forms relationships with his clients, which include large and small businesses, municipalities, families and individuals. His work begins by developing an understanding of their situation, actual or anticipated challenges, and goals. Jeff sees the client first, not the case. Over the course of his legal career, Jeff has led many clients through different legal needs, from business to family to estate and individual, which gives his clients a remarkable advantage through a multi-faceted approach to the law and legal issues.

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