# Penncrest SD v. Cagle, T., Aplt.

> Supreme Court of Pennsylvania · August 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11123073

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 19, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Dougherty, Kevin M.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11123073

## How later opinions describe it (automated extraction)

- applying “a reasonably broad perspective concerning what comprises transactions and activities of the agency”

## Opinion text

[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

CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: AUGUST 19, 2025
The Right-to-Know Law (“RTKL”)1 defines a “record” as

[i]nformation, regardless of physical form or characteristics, [(1)] that
documents a transaction or activity of an agency and [(2)] that is created,
received or retained pursuant to law or in connection with a transaction,
business or activity of the agency. The term includes a document, paper,
letter, map, book, tape, photograph, film or sound recording, information
stored or maintained electronically and a data-processed or image-
processed document.
65 P.S. §67.102. We all agree this statute imposes “a two-part inquiry that applies equally

to all forms of communication, including Facebook posts.” Majority Opinion at 21; see

also Dissenting Opinion at 1 (“The Majority reaffirms 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. With that, I agree.”) (cleaned up). But confoundingly, even though the

majority and dissent reach very different conclusions about how the statutory test

1 See 65 P.S. §§67.101-67.3104.
operates in this context, they seem to agree its language is unambiguous. See Majority

Opinion at 21 (“These provisions[ are] unambiguous on their face”); Dissenting Opinion

at 5 (“In addition to imposing a judicial gloss upon the statutory rubric, the Commonwealth

Court’s test is unnecessary. The statutory mandate suffices.”). Considering the disparate

views of my colleagues, the parties, and the tribunals below, I cannot agree. See A.S. v.

Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016) (“A statute is ambiguous when there

are at least two reasonable interpretations of the text.”). On the contrary, this case calls

the statute’s ambiguity to full attention.

For context, in the RTKL request at issue, appellant Thomas Cagle sought “[a]ll

Facebook posts and comments” by David Valesky and Luigi DeFrancesco, both members

of the Penncrest School Board (Board), during a specified time period, “related to

homosexuality and Penncrest School District [(District)], its officials, employees, or

students, or its curriculum, physical re[s]ources, or electronic resources,” including those

they deleted or removed. RTKL Request at ¶¶3-6. Applying the two-part inquiry therefore

requires us to determine: (1) whether such posts “document[]” an “activity of an agency”;

and (2) whether they were “created . . . in connection with a[n] . . . activity of the agency.”

65 P.S. §67.102. Below, the en banc Commonwealth Court majority focused much of its

analysis on the phrase “of an agency.” Understandably so, as the phrase appears in both

parts of the statutory test (albeit the latter appearance refers back to “the” agency).

Ultimately, it crafted a list of factors to help the courts, Office of Open Records (OOR),

and open records officers determine whether social media activity is “of an agency.” See

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

Today, this Court vaguely blesses “the consideration of certain factors that may be

pertinent” when assessing “whether information satisfies the RTKL’s two-part test.”

Majority Opinion at 23; see id. at 26 (concluding “the Commonwealth Court’s decision . .
. articulates reasonable facts that warrant consideration when resolving whether a social

media post constitutes an agency record”). Unfortunately, it provides little concrete

guidance beyond that general endorsement, and it fails to appropriately scrutinize some

of the individual factors discussed by the Commonwealth Court below. Most glaringly,

the majority does not explain what the phrase “of an agency” actually means, either

individually or when read in context with the other terms in Section 102’s definition of

“record.” Because I believe it is ill-advised to adopt the Commonwealth Court’s factors

wholesale without answering these outstanding questions, I respectfully concur in part

and dissent in part.

Primarily, this case requires us to consider whether Valesky’s and DeFrancesco’s

alleged “activity,” i.e., posting on Facebook about homosexuality and the District, was “of

an agency” or whether it was done in their capacity as private individuals. In other words,

are their Facebook posts “of” the District, or are they “of” Valesky and DeFrancesco? The

word “of” is a preposition that, in a broad sense, denotes some sort of relationship. It can

serve a variety of functions, as demonstrated by its many dictionary definitions. See, e.g.,

Of, Merriam-Webster.com Dictionary, available at https://www.merriam-

webster.com/dictionary/of (defining “of” as, inter alia, “2 a used as a function word to

indicate origin or derivation[;] b used as a function word to indicate the cause, motive, or

reason[;] c : BY [e.g.,] plays of Shakespeare[;]” d : on the part of[;] e : occurring in[;]” “5

a : relating to : ABOUT[;]” “6 a used as a function word to indicate belonging or a

possessive relationship[;]” “9 a used as a function word to indicate the object of an action

denoted or implied by the preceding noun”); Of, Britannica Dictionary, available at

https://www.britannica.com/dictionary/of (including “belonging to, relating to, or

connected with (someone or something)[;]” “involving or dealing with (something)[;]” and

“used to indicate the subject of an action”).
For present purposes, it is enough to observe that common to all of these

definitions, the word “of” connotes some sort of nexus. But the dilemma in cases like this

one — where the line between personal and professional conduct is fuzzy, and it is difficult

to discern whether an individual is acting on behalf “of an agency” — is determining how

close that nexus must be. Does the RTKL require some official action formally endorsed

by the agency? Or does any connection to the agency, no matter how tenuous, put a

document within the RTKL’s reach?

It seems to me the answer likely lies somewhere in the middle. On the one hand,

the plain language of the provision does not require formal agency action or official

ratification, and other provisions of the RTKL arguably suggest against such a reading.2

Cf. SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1044 n.19 (Pa. 2012) (applying “a

reasonably broad perspective concerning what comprises transactions and activities of

the agency”). By the same token, however, we cannot ignore that Section 102 uses the

phrase “transaction or activity of an agency,” not “transaction or activity of an agency

member, employee, or official.” It is plain that the “transaction or activity” in step (1) of

the statutory test must be attributable to the agency itself, even if it is performed by an

individual.3 Cf. Dental Benefit Providers, Inc. v. Eiseman, 124 A.3d 1214, 1223 (Pa. 2015)

(“albeit that the policy of liberal access is acknowledged, this Court also appreciates that

2 For instance, Section 708 provides exceptions which exempt the record from disclosure.

See 65 P.S. §67.708. One of those exceptions is for “[a] record that reflects[ t]he internal,
predecisional deliberations of an agency, its members, employees or officials . . .,
including . . . contemplated or proposed policy or course of action or any research, memos
or other documents used in the predecisional deliberations.” Id. at §67.708(b)(10)(i)(A)
(emphasis added). This provision might suggest that, but for this statutory exception,
internal, predecisional deliberations of individual “members, employees or officials” could
constitute “records” under the definition in Section 102, even without binding action or
vote by a quorum.
3 Of course, the same can be said for the similar phrase “transaction, business or activity

of the agency” in step (2) of the statutory test.
the General Assembly had tempered such policy with explicit limiting terms delineated in

the [RTKL]”).

Thus, the RTKL’s definition of “record” must be construed liberally,4 but not so far

that the statutory language (namely, “of an agency”) loses all meaning. I therefore reject

Cagle’s argument that “[t]he Facebook posts ‘document[] . . . activity of’ the District”

merely “because they involve officials discussing District functions and operations.”

Cagle’s Brief at 14 (text formatting omitted); see also Trial Court Opinion, 12/16/21, at 5

(“[T]he public needs to know if Board member Valesky thinks the library book display is

evil and he intends to take action in his official capacity.”). In my view, it is possible for

agency employees to discuss aspects of their jobs in private, even in written form, without

creating a “record” as defined under the RTKL.

For similar reasons, I respectfully disagree with the dissent’s conclusion that the

Commonwealth Court erred when it held “content was not determinative.” Dissenting

Opinion at 9. Although content is critical and might ultimately be the determinative factor

in some (or even most) cases, context matters too. When we communicate, the meaning

of our words is shaped by many factors, including the medium we use to convey them.

So we cannot simply divorce content from its context; if we did, agency employees could

end up unwittingly creating public records in all aspects of their lives.

4 On this point, our law is clear.We have repeatedly explained “the objective of the RTKL
‘is to empower citizens by affording them access to information concerning the activities
of their government.’” Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013), quoting SWB
Yankees LLC, 45 A.3d at 1042; see also Pa. Interscholastic Athletic Ass’n, Inc. v.
Campbell, 310 A.3d 271, 281 (Pa. 2024) (quoting the same). In Levy, we explained the
2008 enactment of the RTKL “was a dramatic expansion of the public’s access to
government documents” from its predecessor legislation, it “demonstrate[d] a legislative
purpose of expanded government transparency through public access to documents[,]”
and “that courts 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.” Levy, 65 A.3d at
381 (internal quotations and citation omitted).
Consider Valesky’s commentary here: “This is on display at Maplewood High

School. Besides the point of being totally evil, this is not what we need to be teaching

kids. They aren’t at school to be brainwashed into thinking homosexuality is okay. Its

[sic] actually being promoted to the point where it’s even ‘cool.’” Answer to Petition for

Judicial Review, 10/27/21, at Ex. C. Imagine if, instead of posting this content on

Facebook, Valesky sent a picture of the library display with this exact same comment in

a text message to his spouse. Or imagine instead that he wrote it in his diary, with no

intention for anyone else to ever see it. Under the dissent’s rationale, which makes

content king, both the text message and the diary page would be a “record” subject to

disclosure simply because Valesky is a school board member discussing the school

district. But as a matter of common sense, it is easy to see how those scenarios involve

private activity rather than “activity of an agency[.]” 65 P.S. §67.102. Context matters.5

Moreover, the dissent simply concludes: “In discerning whether records qualify as

records ‘of’ a particular agency, we consider the subject-matter of the records. It is the

content of the record that matters. The statutory test is all that is needed to illuminate

that content.” Dissenting Opinion at 10 (internal quotation, footnote, and citation omitted).

5 The dissent’s content-only inquiry can also cut the other way to limit access. Consider
Governor Josh Shapiro’s Instagram page, for which his handle is “governorshapiro,” and
which identifies him as “Governor of the Commonwealth of Pennsylvania.” Governor
Josh Shapiro (governorshapiro), INSTAGRAM, https://www.instagram.com/
governorshapiro/?hl=en. While Governor Shapiro posts about his positions on various
issues facing the Commonwealth, he also posts other content. For example, videos on
the Governor’s account profess his partiality for Uncrustables, frozen crustless
sandwiches commonly filled with peanut butter and jelly. See, e.g., Governor Josh
Shapiro (governorshapiro), INSTAGRAM (July 14, 2025), https://www.instagram.com/
reel/DMGnTOdtsBv/. Although Uncrustables have nothing to do with the Executive’s
official responsibilities (as far as I’m aware), the Governor is undoubtedly interacting with
constituents and presumably attempting to give them a positive impression. Under the
dissent’s strict rule, such videos would decidedly not be “records” due to their content.
And while I do not take a firm stance either way, I would not foreclose the possibility that
public engagement with constituents, on an official government account, might create a
“record” in some cases.
Respectfully, as with the majority opinion, I am unsure what, according to the dissent,

qualifies as a “record[ ] ‘of’ a particular agency,” or what type of “content” would satisfy

the statutory test. Since the dissent summarily states it would reverse the Commonwealth

Court’s decision and “reinstate the trial court’s order requiring [the] District to disclose the

responsive Facebook posts[,]” id. at 10, I infer that the content Cagle seeks in the RTKL

request — Facebook posts by Valesky and DeFrancesco (and comments thereto)

“related to homosexuality and [the] District, its officials, employees, or students, or its

curriculum, physical re[s]ources, or electronic resources” — meets the dissent’s

threshold. But the dissent does not explain how it concludes that such posts and

comments, across the board, (1) document a transaction or activity of the District; and

(2) were created, received, or retained in connection with a transaction, business, or

activity of the District.

This brings me to the test announced by the Commonwealth Court.6 As explained

above, even absent a full statutory interpretation by the majority of the RTKL’s definition

6 To reiterate, the Commonwealth Court articulated the following, “nonexclusive” factors:

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
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.
(continued…)
of “record,” in my view, at the very least the phrase “transaction or activity of an agency”

requires some nexus between the transaction or activity and the agency, making the

transaction or activity attributable to the agency itself. Viewed through that lens, although

I agree with certain aspects of the lower court’s test, there are others I would alter or

reject.

Starting with the Commonwealth Court’s first factor, I agree the “trappings” of the

medium7 might be relevant, though not dispositive, to determining whether the

documented transaction or activity is “of an agency.” As shown by the Commonwealth

Court’s precedent, private activity does not become “of the agency” just because it

occurred on an official agency email account, and agency activity does not escape the

RTKL just because it occurred on a private email account. See, e.g., Barkeyville

Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012); Easton Area School District v.

Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012); see also Paint Twp. v. Clark, 109 A.3d 796,

808-09 (Pa. Cmwlth. 2015) (rejecting claim that a township supervisor’s “privatized cell

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.
Cagle, 293 A.3d at 800-02 (internal citations and footnotes omitted) (emphasis in original).
Although the majority resists labeling the lower court’s proposed factors a “test,” see
Majority Opinion at 24, I must agree with the dissent that the lower court “adopted such a
test explicitly.” Dissenting Opinion at 2. Of course, that does not mean we are bound to
it in any way; on the contrary, we are free to reject it in whole or in part.
7 A “trappings” inquiry does not have to be social-media-specific.
Various other media
might have the trappings of an agency, including official email addresses, agency
websites, and documents on official letterhead.
phone cannot be disclosed because he purchased the phone himself and it is his personal

phone number” on the basis that “the phone records between [the supervisor] and the

other [t]ownship supervisors pertaining to [t]ownship business constitute a public record”).

But just because a factor might not be dispositive, does not mean it is “immaterial” as a

rule. Dissenting Opinion at 10. In cases where the nature of the transaction or activity is

uncertain, the fact it is performed on an official agency medium, or with the use of agency

or publicly funded resources, likely weighs in favor of finding the activity is attributable to

the agency, while a private medium tends to show it was private.

Regarding the second factor, I observe the lower court essentially just recited the

language of the definition in Section 102 (with some added emphasis on certain words).

I question how this quotation of the statute’s text provides any insight for “resolving

whether a school board member’s social media post was ‘of an agency’ under the

RTKL[.]” Cagle, 293 A.3d at 800. The only supplementary guidance the Commonwealth

Court offered was that “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.” Id. at 801. But it is unclear why content that is

merely “informational in nature” could not document an activity of an agency. After all,

the word “information” is part of the relevant definition: “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 (emphasis added). Plus, as Cagle

cogently points out, Section 102 provides examples of types of records that could easily

be “informational” in nature: “[t]he term includes a document, paper, letter, map, book,

tape, photograph, film or sound recording, information stored or maintained electronically

and a data-processed or image-processed document.” Id.; see also Cagle’s Brief at 22
(“[m]aps, photographs, and lists are all informational in nature”). For these reasons, I

would not endorse the Commonwealth Court’s second factor.

Next, I turn to the Commonwealth Court’s third factor, official capacity. As it stands,

I would decline to hold that official agency approval or ratification of an individual’s actions

is needed to make an activity “of the agency.”8 Absent thorough statutory interpretation

of the phrase, summarily affirming such a factor could improperly undermine the RTKL’s

“purpose of promoting ‘access to official government information in order to prohibit

8 I note the Commonwealth Court’s explanation of “official capacity” — “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[,]” Cagle, 293 A.3d at 802
— derives from In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011). Silberstein involved a
RTKL request for, inter alia, electronic communications between two York Township
commissioners and township citizens pertaining to township development projects, which
were maintained on the commissioners’ private computers. See Silberstein, 11 A.3d at
633. The Silberstein court held they were not “public records,” reasoning “a distinction
must be made between transactions or activities of an agency which may be a ‘public
record’ under the RTKL and the emails or documents of an individual public office holder.”
Id. The court relied on the fact that Silberstein was “not a governmental entity[, but] an
individual public official with no authority to act alone on behalf of the Township.” Id. It
determined that “unless the emails and other documents in Commissioner Silberstein’s
possession were produced with the authority of York Township, as a local agency, or
were later ratified, adopted or confirmed by York Township, said requested records
cannot be deemed ‘public records’ within the meaning of the RTKL as the same are not
‘of the local agency.’” Id. This Court has not passed on the merits of Silberstein, but I
observe that in more recent decisions, the Commonwealth Court has seemingly moved
away from Silberstein’s hardline rule. See Stearns, 35 A.3d at 95-97 (determining
individual council members acted in their official capacity while exchanging emails on
their personal accounts about borough business without analyzing whether the council
members constituted a quorum or otherwise had authority to bind the agency); Baxter, 35
A.3d at 1264 (“While 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.”); Penncrest
School District v. Rodgers, 337 A.3d 604 (Pa. Cmwlth. 2025) (holding Valesky and
DeFrancesco could create a “record” over email even if they do not individually have
authority to transact business or act on behalf of the entire school board). Even in the
present case, although the Commonwealth Court relied (at least in part) on Silberstein, it
recognized “with respect to the disclosure of emails of individual public officials, this
[c]ourt’s precedents are in apparent tension.” Cagle, 293 A.3d at 792-93.
secrets, scrutinize actions of public officials, and make public officials accountable for

their actions.’” Levy, 65 A.3d at 381.9 Instead of looking for official agency approval or

ratification, I believe the inquiry should focus more broadly on whether the individual was

acting in their role as an agency official or employee, or whether they were acting as a

private individual. In other words, was the conduct within the realm of the individual’s

agency employment such that the conduct can be attributed to the agency itself?

To my mind, this is the nub of the issue, i.e., whether the activity was “of an agency.” So

unlike the Commonwealth Court, rather than considering it to be one of multiple factors, I

consider this to be the overarching question.

This leads to my next point: I believe there are other factors — unaddressed by

the Commonwealth Court below or the majority here — that could be relevant to this

inquiry. To be perfectly clear, I do not suggest any of these factors must apply to all

situations or would necessarily be dispositive, nor do I suggest these are the only relevant

factors. They are meant only to provide some guidance in determining whether an

individual employee/official’s activity is “of an agency” when it is unclear. I also note these

considerations are not mutually exclusive; some factors might inform the analysis of

others. Ultimately, the inquiry requires a holistic look at the purported “record” and

consideration of whether the totality of the circumstances merit a finding that the activity

is “of an agency.” My factors are as follows.

First, what was the purpose of the activity? Did the individual intend to perform

some government function or otherwise move the needle on a governmental objective?10

9 Certainly, if there were official agency approval or ratification, that would strongly
suggest (if not prove) the “activity” is “of the agency.” I am clarifying only that I would hold
the inverse — a lack of agency approval or ratification — does not necessarily weigh
against finding the activity is “of the agency.”
10 The Commonwealth Court raised a similar consideration in the context of its “official

capacity factor,” when it stated factfinders may consider “whether the posts furthered the
(continued…)
For instance, was the activity a call to action for constituents or other officials? Imagine,

for example, a school board member has a child who is a student in the district and plays

an instrument in the school band. If the school board member posts a picture on

Facebook of a school band recital with a comment saying he is proud of his child’s

performance, the post would pertain to the school, but its purpose likely would not be to

serve a government function. Now imagine the school board member made the same

Facebook post but included a statement: “This is why you should come to the next school

board meeting to support my proposed budget increase for the music department.” The

purpose of the latter post would be more closely tied to a governmental objective.11

Second, when and where did the individual official or employee perform the

activity? Was it during work hours? Was it on agency premises? Again, while not

agency’s interests.” Cagle, 293 A.3d at 802. I frame this factor differently, as it can be
subjective whether someone furthered the agency’s interests, and it is possible to act on
an agency’s behalf without actually benefiting the agency.
11 “Purpose” also appears to be the linchpin of the statute’s second prong. Recall that
even if information documents a transaction or activity of an agency, to qualify as a
“record” under the RTKL, it must also be “created, received, or retained pursuant to law
or in connection with a transaction, business, or activity of the agency.” 65 P.S. §67.102.
Cases involving such information “that is created, received, or retained pursuant to law”
are generally easy to resolve, because laws requiring their creation, receipt, or retention
usually pertain to the agency itself, not individual members, thus rendering the information
clearly “of the agency.” The difficulty arises in cases like this one, which instead implicate
the alternate “in connection with” phrase. This language, like the word “of,” suggests a
nexus-type requirement. See, e.g., in connection with, Merriam-Webster.com Dictionary,
available at https://www.merriam-webster.com/dictionary/in%20connection%20with
(defining the phrase as an idiom meaning, “in relation to (something) : for reasons that
relate to (something)”). But it is not always redundant of the first prong. In some cases,
the nexus requirement imposed by the second prong will make all the difference. Take
one example. Assume a member of the public attends a school board meeting and takes
notes. The notes would satisfy the first prong of the statute, since they constitute
“[i]nformation . . . that documents a transaction or activity of an agency[.]” 65 P.S.
§67.102. They would not, however, satisfy the second prong, since they were not created
“in connection with a transaction, business, or activity of the agency.” Id. In that scenario,
the “purpose” factor adds little or nothing to an assessment of the first prong, but it is
dispositive as to the second.
dispositive, performing an activity while at work at an agency tends to tie the conduct

more closely to the agency itself.

Third, who is the audience? If the activity at issue is a communication by an

agency official or employee, who was that message directed towards? Consider the facts

of this case, but imagine Valesky and DeFrancesco made the Facebook posts private so

only their “friends” could see. The posts could have a different impact if they had

hundreds of “friends” who were constituents in the school district, versus if they had only

ten friends, all of whom were close family members who lived outside the school district.

Whether an official or employee is acting in the realm of their agency employment might

depend in part on who they are talking to.

Fourth, what is the individual’s job or responsibility within the agency? Does the

activity reasonably relate to their responsibilities, even if not specifically delineated in a

formal job description? Suppose a member of the school’s cafeteria staff made the same

Facebook post as one of the board members here. By the nature of their role within the

agency, the cafeteria worker would have less power regarding issues pertaining to

curriculum or the books available in the library. In my view, the same “activity” would be

farther removed from the agency’s purview and is more likely to be private conduct.

Fifth, as explained above, the trappings of the purported “record” — i.e., whether

the medium for the activity is presented as official agency action — can be relevant, even

if it is not dispositive.

Again, I emphasize these factors are non-exclusive and are meant only to provide

a guide for determining whether a transaction or activity of an individual is “of an agency.”

And I stress that even beyond that question, other terms in the RTKL’s definition of

“record” arguably give rise to ambiguity. For instance, assuming arguendo the Board

members’ Facebook posting qualifies as an “activity of an agency,” under step (1) we
must consider whether “[i]nformation . . . documents” that activity. 65 P.S. §67.102.

Presumably, the “information” would be the posts themselves. The Commonwealth Court

has defined the word “documents” as “proves, supports, or evidences.” Bagwell v. Pa.

Dep’t of Educ., 76 A.3d 81, 91 (Pa. Cmwlth. 2013) (brackets, quotations and citations

omitted). Assuming that’s true, I am unsure that the “information” here — the Facebook

posts themselves — suffice to prove, support, or evidence the “activity” of posting on

Facebook. In other words, can the activity be proof, support, or evidence of itself? The

majority does not say.12

Similarly, step (2) of the inquiry requires us to ask whether the information was

“created, received or retained pursuant to law or in connection with a transaction,

business or activity of the agency.” 65 P.S. §67.102. But applied in this context, it

appears step (2) might be redundant of step (1). To satisfy step (1), the theory is that the

Facebook posts are the “information” that “documents” an “activity of an agency” (i.e.,

school board members posting on Facebook about the District). But if the “activity” in

step (1) is the creation of the Facebook posts, is step (2) automatically satisfied because

the Facebook posts were “created . . . in connection with” the Board members’ “activity”

of posting on Facebook? Again, the majority does not say. It does not address whether

we create surplusage by allowing the “activity of an agency” in step (1) to be the same as

the “activity of the agency” in step (2). Cf. 1 Pa.C.S. §1921(a) (“Every statute shall be

construed, if possible, to give effect to all its provisions.”).

12 I observe the RTKL also imposes two other requirements not addressed here. First,
“an agency shall not be required to create a record which does not currently exist or to
compile, maintain, format or organize a record in a manner in which the agency does not
currently compile, maintain, format or organize the record.” 65 P.S. §67.705. Id. Second,
the agency must have “possession, custody or control of the identified record[.]” 65 P.S.
§67.901. I am unsure how these requirements apply to online Facebook posts and
comments, which presumably exist in digital form on distant servers owned by Facebook.
Nevertheless, as these issues are not presently the focus of this litigation, I do not opine
on them at this juncture.
Although the Court ignores these questions, I would encourage the parties on

remand and future litigants to explore these issues in more depth. For today’s purposes,

however, I concur with the majority’s disposition, which affirms the Commonwealth

Court’s order remanding the case to the trial court for further factfinding. 13 I agree a

remand is required not just to fully consider the announced factors, but also to consider

how they apply to Cagle’s entire RTKL request. I respectfully dissent, however, from the

majority’s acquiescence to the Commonwealth’s Court’s test in toto. I would alter the

factors provided by the Commonwealth Court as detailed above.

I respectfully concur in part and dissent in part.

13 I certainly do not fault the trial court for failing to apply factors that were not articulated

at the time it rendered its decision. Nor do I read the majority opinion as “scold[ing] the
trial court” for failing to address those factors. Dissenting Opinion at 5.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11123073. Public record. Not legal advice.