PENNCREST Right-to-Know case breaks new ground regarding officials' social media posts

Apr. 26—The question of whether postings to the personal social media accounts of Pennsylvania's public officials are subject to Right-to-Know requests will be reconsidered after an appeals court decision filed Monday set aside an earlier ruling against PENNCREST School District in a first-of-its-kind case.

The eventual answer will depend largely on whether two PENNCREST School Board members were acting in their official capacity when they made posts to their individual Facebook accounts regarding a Pride Month display at Maplewood Junior-Senior High in May 2021, according to the 4-3 Commonwealth Court decision authored by Judge Lori Dumas.

The opinion rejects key lines of reasoning from a December 2021 decision in Crawford County Court of Common Pleas that had ruled the posts in question were subject to disclosure under Pennsylvania's Right-to-Know Law.

"We respectfully disagree with the trial court's holding that it 'does not matter' if the social media post was on a public or private account," the Commonwealth Court decision states. "We also disagree with the court to the extent it suggested that merely because a board member expressed his views about board business in a social media post, he created a public record. We hold the court must address, among other factors, whether that board member acted in an 'official capacity.'"

Change of attorneys expected

While the district is expected to continue to pursue the case, it will likely do so with new representation.

"Obviously, I think the decision is favorable to the district and I expect that the Dillon McCandless firm will continue to defend the district's position," attorney George Joseph of Quinn Law Firm said in a phone interview Tuesday.

Joseph resigned as the district's attorney in January after board members rejected his advice regarding controversial policies on library materials and district athletic teams that were subsequently approved by the board. The district has since hired Dillon McCandless King Coulter & Graham LLP of Butler.

Joseph said Tuesday that the board had asked him to continue handling the appeal pending before Commonwealth Court. Now that the case has been remanded, it would make sense for the district's new counsel to take over, he added.

Brian Cagle, an attorney with the Meadville firm Pepicelli, Youngs and Youngs who represented PENNCREST resident Thomas Cagle in the case, was still reviewing the decision when reached via email Tuesday.

"It appears that the Commonwealth Court sent the case back to Common Pleas Court with instructions to review a number of factors in considering whether the social media posts are subject to disclosure under the Right to Know Law," Cagle said. "The next step will probably be another hearing in the Common Pleas Court."

The case so far

The case originated with a Right-to-Know request from Tom Cagle, who asked the district for Facebook posts and comments "related to homosexuality and Penncrest School District" made between Jan. 1, 2020, and June 13, 2021. The request also included posts and comments removed or deleted by board President Luigi DeFrancesco and member David Valesky.

Valesky had shared a post about the display of books featuring LGBTQ-related themes and added a comment of his own.

"Besides the point of being totally evil, this is not what we need to be teaching kids," Valesky wrote. "They aren't at school to be brainwashed into thinking homosexuality is okay. It's actually being promoted to the point that it's even 'cool.'"

DeFrancesco shared the post as well but did not add a remark of his own to preface the original post.

After PENNCREST initially denied Cagle's request, saying there were no such posts or comments on any district-owned Facebook accounts, the decision was appealed to the state's Office of Open Records (OOR), which sided with Cagle. OOR determined that Facebook posts could be considered public records whether or not the district controlled the page in question. OOR also found that the pages had been used as significant platforms by elected officials and that the book display that was the subject of the Facebook posts was discussed at a board meeting.

The OOR decision was affirmed when PENNCREST appealed in Crawford County Court of Common Pleas. The school district appealed again, leading to the Commonwealth Court decision filed Monday.

A new roadmap

While previous cases have addressed the use of private emails by elected officials, the focus on social media posts marks a significant step as courts continue to grapple with issues of transparency raised by a frequently evolving social media landscape.

The Commonwealth Court decision provides a "roadmap to determine whether they are public records," Joseph said.

Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association, saw the decision in similar terms but not as the final word.

"This is the first time a Pennsylvania appellate court has dealt with social media posts in the context of the Right-to-Know Law, so it is an important decision," Melewsky said Tuesday in an email to The Meadville Tribune. "The factors announced by the court take many factors into consideration and they provide a roadmap, but they do not create a bright line test for determining when public officials' private social media posts cross the line into public records, so there will continue to be access issues as technology and the body of case law develops."

Breaking new ground

The decision establishes, for the first time, three questions to be considered in determining whether social media posts by public officials qualify as public records: whether the social media account uses for the posts is public or private; whether the "posts prove, support, or evidence a transaction or activity of an agency"; and whether the posts and social media account fall qualify as the products of "public officials in their official capacity."

Joseph said the case is likely to be returned to Crawford County and the district's new law firm put in place over the course of the next 45 days. At that point, additional arguments in the case could be heard.

Superintendent Tim Glasspool declined to comment on the decision when contacted by email Tuesday.

DeFranceso and Valesky did not respond to email and voicemail messages seeking comment.

Melewsky said that while it's still early in the courts' adaptation to social media, the decision could ultimately result in diminished transparency for the public.

"The fact that the court's factors look at the universe of the social media page, in addition to considering whether there's a link to official action and official capacity may make access more difficult than it was under the OOR's approach," she said.

It's also possible, however, the court could reach the same conclusion that the board members' social media posts qualify as public records.

"Nothing within our decision," the Commonwealth Court opinion noted, "precludes the trial court from reaching its prior holding," referring to a court's determination of a matter of law based on the issue presented in the particular case.

Mike Crowley can be reached at (814) 724-6370 or by email at mcrowley@meadvilletribune.com.