Determining whether information related to social media — including social media posts, direct messages sent via social media, and other types of information — qualifies as a “record” or a “public record” under the RTKL is no different than determining whether an email, a memo, or a map is a “record” or a “public record.”
First, agencies should determine whether a request is seeking a record, defined as “information … that documents a transaction or activity of an agency…”
If the request is seeking a record, agencies should determine whether it is a public record, defined as “A record, including a financial record, … that (1) is not exempt under Section 708, (2) is not exempt … under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.”
Examining some decisions from the Office of Open Records (OOR) and the Commonwealth Court may be useful. Here’s a look at several of the most significant decisions involving social media.
The request sought records related to the mayor’s Facebook page, including a list of page administrators and editors and all comments made and removed or blocked from the page.
The OOR held that the Facebook page, titled “Joseph Dominick Mayor of Wyoming” and categorized as a “Public Figure” page, is a record of the agency. The agency proved that certain records do not exist, but failed to demonstrate that other records do not exist. The appeal was granted in part and denied in part.
(Note that as of the date of this post, either party could appeal this decision to the Luzerne County Court of Common Pleas. The OOR issued this final determination on Sept. 5, 2018.)
The request sought copies of Facebook posts and comment threads from the Mayor’s Facebook page mentioning a Rail Trail mural proposal, along with emails and Facebook Messenger messages.
The OOR held that the mayor’s public figure Facebook page, which contained discussions and posts regarding activities within the Borough, including those relating to the police department and members of council, was a record of the agency. The appeal was granted.
The request sought the Pennsylvania State Police’s (PSP) policy for use of social media. PSP granted the request in part, providing a redacted copy of the policy and arguing that disclosure of the redacted information would threaten public safety. The redactions were appealed.
This case went to the Commonwealth Court, which held that an affidavit provided by PSP was sufficient to meet the agency’s burden of proof under the RTKL and, accordingly, the redactions were appropriate. The Commonwealth Court decision is available here. The case is now pending in the Supreme Court.
The request sought various records related to a “Britney Bella” Facebook profile the DA’s office was alleged to have created.
The District Attorney attested, under penalty of perjury, that a search was conducted and that no records exist. The appeal was denied.
The request sought records related to the agency’s Facebook page, including a list of personnel who operate the page, certain posts, and a list of blocked users.
The agency provided the list of personnel and demonstrated that the posts no longer existed. During the course of the appeal, the OOR directed the agency to take a screenshot of the list of blocked users. The screenshot was subsequently provided to the requester. The appeal was denied in part and dismissed as moot in part.
The request sought tweets and direct messages sent from two specific Twitter accounts during all open meetings over the course of about six months.
The agency advised the requester that the tweets could be viewed online and proved that no direct messages existed. The appeal was denied.