Summary
This is a concurring and dissenting opinion by Justice Dougherty of the Supreme Court of Pennsylvania in a Right-to-Know Law dispute involving Facebook posts by Penncrest School Board members. The opinion examines whether social-media posts by public officials document an agency activity and were created, received, or retained in connection with agency business. Justice Dougherty questions the Commonwealth Court’s factors and advocates a holistic inquiry focused on whether the official acted in an agency role or as a private individual.
Topics
Practice areas
Questions Presented
- Whether Facebook posts and comments by individual school board members may constitute agency records under the Right-to-Know Law's two-part definition of a record.
- What considerations should guide the determination whether social-media activity by public officials documents a transaction or activity of an agency and was created, received, or retained in connection with an agency transaction, business, or activity.
- Whether the Commonwealth Court's remand for further factfinding was appropriate.
Holdings
- In Justice Dougherty's nonbinding view, the phrase "transaction or activity of an agency" requires a nexus between the conduct and the agency, and the proper inquiry should focus on whether the individual was acting in the role of an agency official or employee rather than as a private individual.
- In Justice Dougherty's nonbinding view, the determination should involve a holistic, totality-of-the-circumstances inquiry considering the purpose of the activity, when and where it occurred, the audience, the individual's agency role and responsibilities, and the trappings of the medium.
- The Commonwealth Court's order vacating the trial court's disclosure order and remanding for further factfinding should be affirmed.
Key quotations
“The RTKL’s definition of “record” must be construed liberally, but not so far that the statutory language (namely, “of an agency”) loses all meaning.”
“Context matters.”
“Ultimately, the inquiry requires a holistic look at the purported “record” and consideration of whether the totality of the circumstances merit a finding that the activity is “of an agency.””
Factual background
Thomas Cagle sought Facebook posts and comments made by Penncrest School Board members David Valesky and Luigi DeFrancesco during a specified period concerning homosexuality and Penncrest School District, its officials, employees, students, curriculum, and physical or electronic resources. The request included posts or comments that had been deleted or removed. The dispute concerned whether such social-media communications were agency records under the Pennsylvania Right-to-Know Law.
Procedural history
Cagle submitted a Right-to-Know Law request seeking Facebook posts and comments by Penncrest School Board members David Valesky and Luigi DeFrancesco concerning homosexuality and the school district, including its officials, employees, students, curriculum, and resources. The Crawford County Court of Common Pleas ordered disclosure on December 16, 2021. The Commonwealth Court vacated that order and remanded on April 24, 2023. The Supreme Court of Pennsylvania affirmed the Commonwealth Court's remand order; Justice Dougherty concurred in the disposition but dissented from the majority's treatment of the Commonwealth Court's factors.
Remand instructions
The case is to proceed on remand for further factfinding and application of the relevant considerations to Cagle's entire Right-to-Know Law request.