Whether or not a municipal official’s personal social media pages or posts are subject to disclosure pursuant to the Right to Know Law is a question we frequently receive. Prior to 2017, there was not a clear answer, though based upon the Right to Know Law’s definition of a “record,” we advised that officials be wary. Now, however, the case law has developed on this issue.Beginning with Purdy v. Chambersburg Borough, the Office of Open Records (“OOR”) has developed the legal basis for disclosure of private social media content pursuant to the Right to Know Law under certain circumstances. In Purdy, the OOR analyzed the definition of record, which is “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102. From there, the OOR reasoned that the two-part test for determining if material is a “record” applies to the social media posts. The two-part test requires analysis of the following questions: 1) does the material document a transaction or activity of an agency; and, if so, 2) was the material created, received or retained in connection with a transaction, business or activity of an agency? In Purdy, the social media posts at issue were made on the Mayor of Chambersburg Borough’s personal Facebook page. It was not an account that was authorized by Borough Council or overseen by the municipality in any way. However, because the Mayor was using his personal page to post about Borough business as the Mayor, the OOR determined that the page satisfied the criteria of being a record pursuant to the Right to Know Law. OOR Dkt. No. 2017-1229. The OOR took the analysis one step further in Schultz v. Montgomery County. In Schultz, the OOR upheld Purdy, stating that it is immaterial whether or not the municipality has oversight over the social media page or authorized the official to maintain such an account. Rather, what matters is whether the content of the social media page shows that it is used as a significant platform by an elected official or employee to conduct or discuss official business such as among other things, economic development, community planning, maintenance, public safety and community service projects within the agency. In Schultz, a County Commissioner was using his Facebook page to post about County business, and then deleting comments on his posts that he disagreed with or did not like. In that matter, a separate complaint was filed against the Commissioner for violating constituents’ rights under the First Amendment. The OOR found that “the records requested of [the Commissioner’s] social media accounts contain discussions and posts regarding activities of the Commissioner, in his capacity as the County Commissioner… Accordingly, as in Purdy, the OOR determines that the social media accounts of [the Commissioner] meet the criteria of being records of the County under the RTKL.” OOR Dkt. No. AP 2020-1280. As such, we do not recommend that public officials use social media to discuss municipal business, as it could create records that are subject to the Right to Know Law, as well as implicate other legal issues such as violations of the First Amendment and the Pennsylvania Sunshine Act. If you have questions about the use of social media for municipal purposes, please contact a member of Stock and Leader’s Municipal Group.
May 23, 2022
by Sarah L. Doyle