Penncrest SD v. Cagle, T., Aplt.

[J-65-2024] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

PENNCREST SCHOOL DISTRICT, : No. 31 WAP 2023

:

Appellee : Appeal from the Order of the

: Commonwealth Court entered April

: 24, 2023, at No. 1463 CD 2021,

v. : Vacating the Order of the Court of

: Common Pleas of Crawford County

: entered December 16, 2021, at No.

THOMAS CAGLE, : AD 2021-486, and Remanding.

:

Appellant : ARGUED: October 9, 2024

DISSENTING OPINION

JUSTICE WECHT DECIDED: AUGUST 19, 2025

Today, this Court endeavors to identify the circumstances in which a Facebook

post constitutes a “record” for purposes of the Right-to-Know Law (“RTKL”). The RTKL

defines a “record” as “[i]nformation, 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.” 1

The Majority “reaffirm[s] that [the RTKL’s] two-part inquiry is the only test to be utilized

when determining whether disclosure of information . . . is required under the statute.” 2

With that, I agree. I agree as well that the RTKL’s reach extends to digital records, such

as emails and social media posts, and that Penncrest School District is an agency to

which the RTKL applies.

1 65 P.S. § 67.102.

2 Maj. Op. at 26.

My disagreement with the Majority stems from its approval of the Commonwealth

Court’s decision to announce a list of factors that “must” be used in determining whether

a social media post constitutes a record.3 The Majority labors to minimize this

pronouncement, insisting with undue optimism that, “[i]n our view, the Commonwealth

Court did not adopt a social-media specific test. . . .” 4 Perhaps recognizing (while not

conceding) that the Commonwealth Court had done just that, the Majority adds for good

measure that, “to the extent the lower court’s analysis can be interpreted as such, we

reject that notion.”5 But there was nothing “notional” about what the Commonwealth Court

said here. The Commonwealth Court did not leave open for “interpret[ation]” the question

of whether or not it was “adopt[ing] a social-media specific test.” It adopted such a test

explicitly. The Majority chooses to “find that the Commonwealth Court’s decision is not

in tension with [the RTKL’s] test but rather, articulates reasonable facts that warrant

consideration when resolving whether a social media post constitutes an agency

record. . . .”6 I disagree.7 The Commonwealth Court’s analysis adds language not found

in the RTKL, thereby frustrating the statutory mandate rather than vindicating it.

After reviewing case law related to disclosure of emails, the Commonwealth Court

opined that social media “may require a different analytical framework” than that used in

3 See Penncrest Sch. Dist. v. Cagle, 293 A.3d 783, 800-02 (Pa. Cmwlth. 2023).

4 Maj. Op. at 24.

5 Id.

6 Id. at 26.

7 The Concurring and Dissenting Opinion (“CDO”) views this disagreement as

evidence that the statute is ambiguous. CDO at 1-2. It is not. It is a dispute regarding

whether various factors should be layered onto the plain text of the statute in order to

effectuate it.

[J-65-2024] [MO: Mundy, J.] - 2

the email cases.8 The court then explored social media cases arising in the Office of

Open Records (“OOR”), out-of-state decisions, and federal civil rights proceedings under

42 U.S.C. § 1983 that included adjudication of whether a state actor was acting in an

official capacity. Initially, acknowledging the RTKL and cases interpreting it, the

Commonwealth Court stated that, in order for a social media post to be subject to

disclosure:

(1) it must prove, support, or evidence an agency’s transaction or activity;

(2) it was created, received, or retained in connection with an agency’s

transaction, business, or activity; and (3) it was created by, originated with,

or possessed by the agency.9

However, deciding that it was “not faced with such a seemingly straightforward

analysis . . .,”10 the Commonwealth Court proceeded to identify the crucial issue as

whether the “social media post documents a transaction or activity of the school board.”11

The court rejected the idea that the content alone could determine whether the post was

“of the agency,” because that content would not be determinative of whether the post was

made in the school board member’s official capacity. Accordingly, the Commonwealth

Court declared, “we must consider the following nonexclusive factors:”12

First, we examine the social media account itself, including the private or

public status of the account, as well as whether the account has the

“trappings” of an official agency account. We must also consider whether

the school board member has an actual or apparent duty to operate the

8 Penncrest Sch. Dist., 293 A.3d at 793; see id. at 791-92 (discussing email cases

including In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011); Mollick v. Twp. of Worcester,

32 A.3d 859 (Pa. Cmwlth. 2011); Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth.

2012); Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012)).

9 Id. at 798-99.

10 Id. at 800.

11 Id. (emphasis in original).

12 Id.

[J-65-2024] [MO: Mundy, J.] - 3

account or whether the authority of the public office itself is required to run

the account. Focusing only on the trappings of the account, i.e., its

appearance or purpose, is likely not dispositive, as we must also examine

the universe of responsive posts.

Second, in examining the school board member’s social media posts, we

consider the following. Initially, whether such posts prove, support, or

evidence a transaction or activity of an agency. In resolving the above, the

content of the posts may be reviewed to address whether the posts were

merely informational in nature, i.e., did not directly prove, support, or

evidence the agency’s governmental functions. We also address whether

the posts were created, received, or retained by law or in connection with a

transaction, business, or activity of an agency.

Third, we consider “official capacity” with regard to the account and the

posts. Although the RTKL does not explicitly define “official capacity,” we

previously addressed whether the information at issue was produced under

the agency's authority or subsequently ratified, adopted, or confirmed by

the agency, i.e., authorized activity. We explained that the information at

issue must be created, received, or retained by public officials in their official

capacity, i.e., scope of employment, as public officials. We may consider

whether the agency required the posts, the agency directed the posts, or

whether the posts furthered the agency's interests.13

Unlike today’s Majority, I am unable to view the Commonwealth Court’s factors

(which factors it held it “must” consider) as merely suggestive. The Commonwealth Court

created a new test, announcing extra-statutory factors of its own design for social media

cases.

While denying that the Commonwealth Court adopted such a test, the Majority

implicitly concedes that the Commonwealth Court in fact did so: “to the extent the lower

court’s analysis can be interpreted as [a test], we reject that notion.”14 When a reviewing

court lists factors that must be considered, it has created a test that it and lower tribunals

must follow. The Majority is correct to reject this non-test test as such even though it

13 Id. at 800-02 (internal citations and footnotes omitted; emphasis in original).

14 Maj. Op. at 24.

[J-65-2024] [MO: Mundy, J.] - 4

perceives it as merely notional. In addition to imposing a judicial gloss upon the statutory

rubric, the Commonwealth Court’s test is unnecessary. The statutory mandate suffices.

But the Majority does not reject the Commonwealth Court’s rationale. The Majority

endorses consideration of non-statutory factors when addressing whether a record is “of

an agency,” and it scolds the trial court for “fail[ing] to consider a host of different factors

when assessing whether the Facebook posts documented a transaction or activity ‘of an

agency.’”15 The Majority opines that the Commonwealth Court merely listed factors that

have been considered in other cases. Having reviewed the cases cited by the Majority, I

disagree. Those cases explored the statutory test; they did not prescribe additional

factors.

For example, in Barkeyville Borough v. Stearns,16 the requestors sought, among

other things, emails exchanged between borough council members. The “OOR

concluded that the emails reflecting council business that are in the possession of

individual Council members and located on their personal computers are within the

Borough’s control. . .”; as such, the emails had to be turned over to the requestors.17 On

appeal, the Commonwealth Court determined that the emails documented a transaction

or activity of the agency because they showed council members discussing a land

development deal. Additionally, since the emails were created by council members, the

court ruled that the emails were created in connection with an activity of the agency. The

court also concluded that the council members were acting in an official capacity because

the emails documented their consideration of council business. Hence, the emails were

records within the meaning of the RTKL.

15 Id.

16 35 A.3d 91 (Pa. Cmwlth. 2012).

17 Id. at 93.

[J-65-2024] [MO: Mundy, J.] - 5

Turning to whether the records were public and, thus, subject to disclosure, the

Stearns court assessed whether those records were in the control of the council. Because

the “borough, made up of individual council members, acts and carries out its duties

through its council members,” the court determined that the emails were within the

constructive possession of the borough, even though they were located on personal

computers.18

Finally, the court turned to whether the emails were records “of an agency.” The

court noted that permitting council members to evade the RTKL by using private email

accounts to conduct business would undermine the RTKL. The court concluded:

[T]he emails between individual Council members are “of” the Borough.

The emails sought by Requesters are emails created by public officials, in

their capacity as public officials, for the purpose of furthering Borough

business. The Borough created the information sought, because, as

previously discussed, the individual Council members make up the Borough

government.19

Thus, in its analysis of official capacity and whether a record was “of an agency,” the

Stearns court applied the statutory test.

In Easton Area School District v. Baxter,20 the requestor sought all emails sent and

received during a one-month period by nine school board members and the

superintendent, and at the general school board email address. Answering the question

of whether all emails sent to or from agency email addresses and stored on agency

computers must be records of the agency, the court concluded that neither the particular

email address that was used nor the storage location proved that the emails were records

18 Id. at 96.

19 Id. at 97 (emphasis in original).

20 35 A.3d 1259 (Pa. Cmwlth. 2012).

[J-65-2024] [MO: Mundy, J.] - 6

per se. Instead, these would constitute records if they “document the agency’s

transactions or activities.”21

The school district argued that an email from one board member could not

document a transaction of the agency because one member did not have the ability to

bind the board. The Baxter court rejected that argument, stating that, “[w]hile an individual

school board member lacks the authority to take final action on behalf of the entire board,

that individual acting in his or her official capacity, nonetheless, constitutes agency activity

when discussing agency business.”22 As in Stearns, the court discussed official capacity,

but did not add to the statutory test. The court remained focused upon the content of the

document as the determinative feature of that document’s status as a record. The lack

of an ability to bind the agency did not preclude a finding that an email was a record of

the agency.

By contrast, in Bagwell v. Office of the Attorney General,23 the Commonwealth

Court held that an email was not a record subject to disclosure. There, the requestor

sought an email that a judge sent from his personal account to a former member of the

Office of the Attorney General. The email apparently contained the judge’s personal

thoughts and criticisms of an investigation. The email had been provided to a lawyer who

had been appointed by the Attorney General to conduct a review of the criticized

investigation. The court noted that the fact that an email was sent from a personal

account does not automatically preclude it from being deemed a record of the agency;

conversely, an email in an agency’s possession is not a record if it pertains only to

21 Id. at 1264.

22 Id.

23 1651 C.D. 2914, 2015 WL 5123089 (Pa. Cmwlth. 2015) (memorandum opinion).

[J-65-2024] [MO: Mundy, J.] - 7

personal matters.24 The court concluded that, because the email contained the judge’s

personal thoughts and comments, it did not document an activity or transaction of the

agency.25 Rather than adding to the statutory test, the Bagwell court examined the

circumstances and content of the document in order to determine whether it was a record

pursuant to the RTKL.26

In Purdy v. Borough of Chambersburg,27 the requestor sought, among other things,

Facebook posts on a mayor’s public page related to a mural proposal that had been

presented to the borough council. The OOR deemed immaterial the question of whether

the borough authorized the mayor’s Facebook page. The OOR focused instead upon the

fact that the borough acts through its elected officials, including the mayor, the fact that

the mayor has multiple areas of civic responsibility, the fact that the page was listed on

the borough’s official website, and the fact that the “page contains discussions and posts

regarding activities within the Borough, including those relating to the police department

and councilmembers, and contains contact information for the Borough.”28

In Boyer v. Wyoming Borough,29 the OOR similarly determined that a mayor’s

Facebook page was a record, even though the borough council did not create or authorize

the page. “Rather, the OOR looks at whether the content of the Facebook page shows

24 Id. at *2.

25 Id. at *3.

26 Because the court concluded that the email was not a record, it did not reach the

Attorney General’s second reason for declining to disclose the email—to wit, that it was

subject to a sealing order from this Court. Id. at *3 n.11.

27 No.: AP 2017-1229, 2017 WL 3587346 (Pa. Off. Open Rec. filed Aug. 16, 2017).

28 Id. at *3.

29 No: AP 2018-1110, 2018 WL 4293461 (Pa. Off. Open Rec. filed Sept. 5, 2018).

[J-65-2024] [MO: Mundy, J.] - 8

that it is used as a significant platform by an elected official to conduct official business.”30

As “[n]early all” of the posts related to borough business, the OOR concluded that the

page was a record of the borough.31, 32 While the OOR explored additional

considerations, it was the content of the record that controlled the determinations.

The case law demonstrates that the content of the document is paramount.33 The

Commonwealth Court here concluded instead that content was not determinative. While

the Commonwealth Court attempted to apply the statute within the context of social

media, it created disclosure hurdles that appear to apply only to social media. For

instance, the Commonwealth Court stated that tribunals must examine whether the record

reveals “trappings” of an official account. This assertion is at odds with Stearns and

Bagwell, both of which stated that it is immaterial whether an email comes from an agency

30 Id. at *3.

31 Id. at *4.

32 Upon appeal, the Commonwealth Court remanded Boyer so that the trial court

could “apply [the] analytical framework” it created in this case. Wyoming Borough v.

Boyer, 299 A.3d 1079, 1086 (Pa. Cmwlth. 2023).

33 The CDO overstates my position. See CDO at 5-6. As shown by the cases

discussed above, content is the most important consideration. I do not suggest that all

other facts are meaningless in all cases. Here, the content suffices to manifest that the

posts are records. The Commonwealth Court did not need to add other factors.

As to the CDO’s hypotheticals — the text to the school board member’s wife and

the diary entry — the Commonwealth Court has held that personal emails “are simply not

records.” Baxter, 35 A.3d at 1264. While this Court has not had the opportunity to review

such a case, and while I take no settled position on factual scenarios that are not before

us, it seems likely that those hypothetical situations would involve personal, rather than

agency, records. Even if the Court were to determine that such communications met the

definition of records, it seems likely that they would not be public records. A public record

is a record of an agency that is not protected by a privilege or is not subject to an exception

enumerated in Section 708 of the RTKL. 65 P.S. § 67.102. In the CDO’s hypotheticals,

either an exception or privilege likely would apply. See, e.g., 65 P.S. § 67.708(b)(12)

(excepting from disclosure notes prepared by an official or agency employee for personal

use).

[J-65-2024] [MO: Mundy, J.] - 9

or private email account. It is the content, rather than the “trappings” of the account, that

matters. While social media is not the same as email, there is neither reason nor license

to improve upon or supplement the statutory test.

“In discerning whether records qualify as records ‘of’ a particular agency, we

consider the subject-matter of the records.”34 It is the content of the record that matters.

The statutory test is all that is needed to illuminate that content. The Commonwealth

Court’s factors go beyond that statutory test. I would not endorse those factors. The

RTKL expanded access to public records. It must be construed liberally to allow that

access.35 Records of agencies are presumed to be public. The burden is on the agency

to prove otherwise.36 Given the statute’s transparency mandate, courts should not engraft

additional requirements that could be used to narrow the broad access that the statute

envisions.

I would reverse the Commonwealth Court’s decision. I would reinstate the trial

court’s order requiring Penncrest School District to disclose the responsive Facebook

posts.

Justice Donohue joins this dissenting opinion.

34 Grine v. Cnty. of Ctr., 138 A.3d 88, 95 (Pa. Cmwlth. 2016).

35 Levy v. Senate of Pennsylvania, 65 A.3d 361, 381 (Pa. 2013) (“[C]ourts should

liberally construe the RTKL to effectuate its purpose of promoting ‘access to official

government information in order to prohibit secrets, scrutinize actions of public officials,

and make public officials accountable for their actions.’”) (quoting Allegheny County Dept.

of Admin. Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011)).

36 See Bowling v. Off. of Open Recs., 75 A.3d 453, 457 (Pa. 2013) (“In 2008, the

General Assembly enacted the RTKL. . . and provided for significantly broadened access

to public records. Under the new law, agency records are presumed to be public records,

accessible for inspection and copying by anyone requesting them, and must be made

available to a requester unless they fall within specific, enumerated exceptions or are

privileged. . . . [T]he relevant government agency bears the ‘burden of proving . . . by a

preponderance of the evidence’ that an exception applies.”).

[J-65-2024] [MO: Mundy, J.] - 10