Christopher L. Voltz, Esq., (412) 594-5580, firstname.lastname@example.org
As an elected school board member, you are looked to as a community leader and are expected to take a leadership role in representing your school district’s interests. In fulfilling this role, many school board members communicate with colleagues, district employees, and members of the public via email, text messages and social media. However, board members must understand that these communications can be subject to a request for records under the Pennsylvania Right-to-Know Law (“RTKL”). As explained in this article, Pennsylvania courts and the Office of Open Records (“OOR”) recognize that school board members may create official records of their school district subject to a RTKL request when they are communicating with other public officials or otherwise acting in some official capacity and discussing agency business on social media.
The RTKL requires that a school district make public records available for inspection. Section 102 of the RTKL defines a “record” as “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102.
With respect to social media accounts, unofficial accounts can be subject to a RTKL request. In fact, the OOR has concluded that “it is immaterial whether or not the [agency] has oversight over the Facebook page or authorized the [officer] to maintain such an account.” Purdy v. Chambersburg Borough, AP 2018-1229. Instead, the OOR will look at whether the content of the social media page shows that it is used as a significant platform by an elected official or employee to conduct or discuss official business. Id.
Posts discussing school district affairs on an official social media account (e.g., Jane Doe, School Board Member) are likely to be records of the school district, even if the account was not approved by the school district. For example, in Schultz v. Montgomery County, AP 2020-1280, the OOR concluded that the records requested of a County Commissioner’s account were records of the County because the social media account contained discussions and posts regarding activities of the Commissioner, in his capacity as the County Commissioner.
Similarly, in Purdy v. Chambersburg Borough, AP 2018-1229, the OOR concluded that a Facebook page was a record of the Borough because it was listed on the Borough’s official website and contained the link “Find the Mayor on Facebook.” In addition, the page contained discussions and posts regarding activities within the Borough, including those relating to the police department and councilmembers, and contained contact information for the Borough. Accordingly, the OOR held that requested Facebook posts and associated comments, including messages sent via Facebook messenger, were subject to public access.
Finally, in Boyer v. Wyoming Borough, AP 2018-1110, the OOR determined that a Facebook page titled “Joseph Dominick Mayor of Wyoming,” was a record of the Borough because nearly all of the postings consisted of the Mayor’s opinion on news stories involving the Borough and political entities affiliated with the Borough, announcements of Borough council meeting times and places, and discussion on topics of public interest within the Borough.
Accordingly, any school board member with an official social media account should expect that any posts or communications made from that account will be subject to a RTKL request.
On the other hand, not every social media post is a record of the District. A board member’s communications made on a personal social media account and made in his or her personal capacity are not records of the District and are not subject to public access, even if certain posts reflect District activities.
In Chirico v. Cheltenham Township School District, AP 2018-0391, the school board president publicly read a statement regarding another school board member’s Facebook post to hold a “Cover Our Schools in Prayer” event on school Property. A requester subsequently sought information about the other school board members’ Facebook accounts, including their viewing history and messages regarding the “Prayer” post.
In this case, the OOR determined that individual school board member’s personal Facebook accounts were not records of the agency and not subject to the RTKL. Critically, these Facebook pages were not linked to the District’s webpage. Moreover, each school board member submitted a sworn statement that they only maintained personal Facebook pages and, when they posted or commented on their pages, they did not hold themselves out as commenting as school board members. For example, one board member stated that she maintains “a Facebook page and she identifies her comments on Facebook as my personal comments and not comments on behalf of the Board or the School District.”
Interestingly, one board member acknowledged that he had been contacted by members of the public on matters concerning the District, but he asserted that the contents of the communications were not shared with other school board members and that he did not rely on the communications (and the information contained in those communications) when making any decisions as a board member. The OOR concluded that, under these facts, the board members’ social media accounts, and the communications contained therein, were not records of the District.
Accordingly, to the extent that board members maintain personal social media accounts, are clearly communicating in their personal capacities, and are not sharing these communications with other board members or relying on these communications when making any decisions as a board member, the OOR is unlikely to find that the social media accounts are records of the District.
It’s important to emphasize while purely personal communications may be beyond the reach of a RTKL request, it is difficult for a board member to have a purely personal comment about the school district that they represent. The general rule is that individual communications by a board member, whether via email or social media, regarding agency business can be records of the district. For example, in Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Commw. Ct. 2012), the Commonwealth Court explained that communications between agency officials may be public records when the records are “created by public officials, in their capacity as public officials, for the purpose of furthering [agency] business.” Accordingly, a board member may create official records when they are communicating with other public officials or otherwise acting in some official capacity and discussing agency business.
In Debartola v. Johnstown Redevelopment Authority, AP 2019-1868, the requester sought posts and messages contained on a private Facebook page maintained by the Authority’s Vice Chairman. The OOR concluded that because the Vice Chairman was capable of creating records of the Authority and the Authority had not submitted any evidence that it had undertaken a search to determine if any of the responsive Facebook posts were records of the Authority, the Authority must, in conjunction with the Vice Chairman, review and provide to the requester any posts discussing or documenting Authority business.
Accordingly, private communications by a Board member regarding District business are subject to a RTKL request even if made in a private social media forum.
As noted above, in many cases communications made on a private social media account will be deemed to be a record of the school district. However, because the account is private, the school district has no way of directly accessing those records. The courts and OOR have explained that if a request is made for communications made by one board member via a social media account that the District cannot unilaterally access, the District’s open records officer must contact that board member and ask him or her to produce any records that might document official activity. If any records are located, they must be turned over to the district’s open records officer for review
The open records officer will then examine those records and provide those which it determines meet the definition of an agency record and are not otherwise exempt from access under the RTKL. See In re Silberstein, 11 A.3d at 633-634 (“Therefore, this Court believes that a right-to-know request directed to a local agency … requires that the local agency’s open-records officer inquire of its public officials … as to whether the public official is in possession, custody or control of a requested record that could be deemed public.”).
Accordingly, the board member is obligated to pull responsive records and turn them over to the school district’s open records officer what will determine what is public.
While this article could not address every intricacy of social media accounts under the RTKL, the important thing to remember is that your posts could be deemed to be a record of the District and subject to a RTKL request. Accordingly, if you have any questions about a particular situation, you should discuss the matter with your solicitor.
June 21, 2021
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