Social Media and Pennsylvania’s Right-to-Know Law

Open records_logo stackedAs agencies across Pennsylvania use social media more often to communicate with residents, Right-to-Know Law (RTKL) requests for records related to social media are becoming more common.

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.

Boyer v. Wyoming Borough (OOR Dkt. No.: AP 2018-1110)

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.

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Three Recent Home Address Cases

Open records_logo stackedLast month, the Pennsylvania Supreme Court issued one decision and the Commonwealth Court issued two decisions addressing issues related to home addresses, the Right-to-Know Law, and the right to privacy found in Article I, Section 1, of the Pennsylvania Constitution.

In chronological order, the decisions are:

Butler Area School District v. Pennsylvanians for Union Reform (Commonwealth Court, November 2, 2017)

Chester Housing Authority v. Polaha (Commonwealth Court, November 21, 2017)

Reese v. Pennsylvanians for Union Reform (Supreme Court, November 22, 2017: majority opinion, concurring opinion)

7 Top Appellate Court Decisions in 2016

These are some of the most significant appellate court decisions issued in 2016 regarding Pennsylvania’s Right-to-Know Law.

148 A.3d 142 (Pa. 2016)

The Pennsylvania Supreme Court held that Article I, Section 1, of the state constitution protects personal information such as home addresses. When a record contains such personal information, a balancing test must be performed to determine whether the interest in disclosure outweighs the interest in privacy.

Commonwealth v. Engelkemier
148 A.3d 522 (Pa. Cmwlth. 2016)

On the issue of specificity, the Commonwealth Court affirmed an OOR Final Determination which held that a keyword list can be sufficient to describe the subject matter in a RTK request, depending on the overall context of the request. The court emphasized the three-part test used to determine whether a request is specific enough under the RTKL, examining the extent to which the request sets forth (1) the subject matter, (2) the scope of documents, and (3) the timeframe.

142 A.3d 1023 (Pa. Cmwlth. 2016)

The Commonwealth Court held that in cases involving voluminous records, the OOR may consider a claim by an agency that it cannot conduct a proper review of the responsive records within the RTKL’s timeline. The agency must provide an estimated number of records and the length of time required to review the records, along with — if the records are electronic — any anticipated difficulty in delivering them.

PUC v. Seder
139 A.3d 165 (Pa. 2016)

The Supreme Court upheld the OOR’s analysis of the Public Utility Code regarding the required disclosure of a “tip letter” and an investigative file associated with a settlement agreement.

Township of Worchester v. OOR
129 A.3d 44 (Pa. Cmwlth. 2016)

The Commonwealth Court held that the OOR, which serves as fact-finder in RTKL appeals, has broad discretion to order in camera review of records.

Grine v. County of Centre
138 A.3d 88 (Pa. Cmwlth. 2016)

The Commonwealth Court found that when financial records of a judicial agency documenting activities of judicial personnel are in the possession of, or shared by, a non-judicial agency, those records must nonetheless be requested from the judicial agency “to ensure the judiciary retains control of its records.”

In re Phila. Dist. Attorney’s Office
2016 Phila. Ct. Com. Pl. LEXIS 55

The Philadelphia Court of Common Pleas found that the Philadelphia District Attorney’s Office acted in bad faith when it did not provide records as ordered by the OOR. The court imposed a $500 penalty. Note: The Commonwealth Court upheld this ruling in early 2017, stating that “the Trial Court made the requisite factual findings, supported by substantial record evidence, to conclude as a matter of law that the District Attorney acted in bad faith.”

Other significant cases from 2016 — and previous years — are available on the OOR website.

Supreme Court Ruling in PSEA Case

The Pennsylvania Supreme Court has issued a ruling in PSEA v. Commonwealth of Pennsylvania, a case involving the home addresses of public school employees.

The opinion was authored by Justice Donohue and joined by Chief Justice Saylor and Justices Baer, Todd and Dougherty. Justice Wecht filed a concurring opinion. Both are available here:

PSEA v. Commonwealth of Pennsylvania – Majority Opinion – Oct. 18, 2016 – PDF

PSEA v. Commonwealth of Pennsylvania – Concurring Opinion – Oct. 18, 2016 – PDF

The case has been “remanded to the Commonwealth Court for further proceedings consistent with this decision.”

Commonwealth Court Weighs in on Large RTKL Requests

Open records_logo stackedThis week, Commonwealth Court issued a ruling in Pennsylvania State System of Higher Education (SSHE) v. Association of Pennsylvania State College and University Faculties (APSCUF).

One of the issues was whether or not the original Right-to-Know Law request submitted by APSCUF to SSHE was specific enough under Section 703 of the RTKL. On that issue, the court upheld the OOR’s finding that the request was specific.

The court then discussed SSHE’s position that, because the request was for such a large volume of records, it couldn’t have responded within the time period established by the RTKL. (SSHE “contends that it was incapable of reasonably discerning whether any exemptions applied to this matter because it neither had the time nor resources to fully review the sizeable volume of records produced by Requesters’ requests in the time-period it was given to do so.”)

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Public Employee Email Addresses

A recent Commonwealth Court decision, Pennsylvania State System of Higher Education v. The Fairness Center, upheld a decision by the Office of Open Records that agency-issued e-mail addresses held out to the public must be released in response to a Right-to-Know request, but that any agency-issued e-mail addresses not held out to the public may be withheld.

In the unreported decision, the Court held that:

“On appeal, PASSHE argues that agency-issued e-mail addresses for its faculty and coaches are all personal and not subject to disclosure, regardless of whether those addresses are primary or secondary in nature. To the contrary, we conclude that the OOR correctly determined that the e-mail addresses at issue could be divided into two categories: those e-mail addresses that were not held out to the public or publically accessible and those that were held out to the public as places where faculty and coaches could be contacted.

“As OOR held and consistent with our case law applying the personal identification information exemption to agency-issued e-mail addresses, we agree with that differentiation and with OOR’s determination that the former type of e-mail addresses should be protected from disclosure and the latter should be subject to disclosure.”

5 Top Appellate Court Decisions in 2015

Every year, dozens of RTKL cases are decided by the Supreme Court, Commonwealth Court, and county Courts of Common Pleas.

Here, in no particular order, are five of the most significant decisions from 2015.

Pa. Dep’t of Education v. Pittsburgh Post-Gazette
119 A.3d 1121 (Pa. Commw. Ct. July 14, 2015)
When the specificity of a request is at issue, Commonwealth Court uses a three-part balancing test, “examining the extent to which the request sets forth (1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought.”

Pa. Office of Attorney General v. Phila. Inquirer
127 A.3d 57 (Pa. Commw. Ct. Nov. 19, 2015)
The RTKL’s definitions of “record” and “public record” were examined. Commonwealth Court held that “[t]he fact that [emails] were sent, received or retained in violation of OAG policy does not transform what was not a public record into a public record under the RTKL. For emails to qualify as records ‘of’ an agency, we only look to see if the subject-matter of the records relate to the agency’s operations.”

Pa. Dep’t of Labor & Industry v. Earley
126 A.3d 355 (Pa. Commw. Ct. Sept. 9, 2015)
Regarding email records, Commonwealth Court held that “When an individual deletes an email from his or her email account … that does not mean that the email is necessarily deleted. Those emails remain on the mail server until they are deleted in accordance with a retention schedule. … [T]o establish that the email records do not exist, the Department must also establish that they no longer exist on the mail server.”

Pa. State Police v. Grove
119 A.3d 1102 (Pa. Commw. Ct. July 7, 2015)
Video recordings made by police car dashcams (a.k.a. mobile video recordings, or MVRs) are not inherently investigative records, although they may include investigative information which needs to be redacted: “The mere fact that a record has some connection to a criminal proceeding does not automatically exempt it under Section 708(b)(16) of the RTKL or CHRIA. … PSP is entitled to redact the portions of MVRs that contain actual investigative information … but may not withhold an entire MVR on the basis that part of it is investigative.” (NOTE: This case is now pending in the Supreme Court.)

Pa. State Police v. Muller
124 A.3d 761 (Pa. Commw. Ct. June 30, 2015)
Reinforcing the need for agencies to provide evidence when a case is before the OOR, Commonwealth Court held that “[a]n agency is not entitled to ignore its burden to show an exemption from disclosure before OOR and rely on supplementation of the record in this Court to avoid the consequences of that conduct.”

Other significant cases from 2015 — and previous years — are available on the OOR website.