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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Federal Court Says Public Officials Can’t Block Twitter Users

A federal court today ruled that President Donald J. Trump cannot block people from following his @realDonaldTrump account on Twitter.

The impact of the ruling, however, is not limited to the president.

Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York wrote, “This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”

The full decision can be read here: Knight Institute vs. Trump

Social Media and the RTKL

Open records_logo stackedTo date, few appeals made to the Office of Open Records have involved social media. In one recent case, Davis v. City of Butler Police Department, the requester sought the following social media records (the request has been lightly edited for clarity):

  1. All posts made by users to the Butler City Police Department and Butler City K9 Fundraiser Facebook pages between Feb. 6, 2016, and Feb. 12, 2016.
  2. A list of all personnel who operate the Butler City Police Department Facebook page, including full name, salary, and date of hire.
  3. A list of all users who have been blocked from the Butler City Police Department Facebook page.

The OOR found that the Police Department demonstrated that no responsive records exist regarding the first item. During the appeal, the Department provided the requester with records responsive to the second item.

As to the third item, the OOR directed the Department to provide a screenshot of its Facebook page indicating whether any banned users were listed.

The Department provided the screenshots, but also said in its filing that “it is outside [the OOR’s] authority to direct [the Department] to compile records that are not maintained in the ordinary course of business.” See 65 P.S. ยง 67.705. The OOR held that the Department did not create or compile a record when it provided the OOR with the requested screenshot from its Facebook page; rather, it produced information from a database which was created by and is under the direct control of the Department.

I predicted in our 2015 Annual Report that the OOR will face more issues involving social media records. This case is a good example.