Pa. Supreme Court tackles public-records fight over school board members' Facebook posts

In 2021, a Crawford County man grew suspicious that members of his local school board were talking about district business on their personal Facebook accounts.

Thomas Cagle wanted to find out what else they were saying.

But when he filed an open-records request for the members’ posts, the Penncrest School District refused to turn them over.

The battle for information went up to the Pennsylvania Supreme Court, and on Wednesday, the justices heard arguments in Pittsburgh on the question at the heart of the case: Are posts by public officials on their personal social media accounts public record?

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, says yes.

When public officials use social media to comment on public policy, the records must be accessible to the public for oversight and accountability, according to Melewsky.

“Social media has become a ubiquitous form of communication, and as public officials use it to communicate about public business, the resulting records must be accessible to the people they serve,” Melewsky said.

“There’s nothing private about public officials discussing public business in a public forum, and the law should recognize as much.”

The Supreme Court’s decision could have statewide impact.

‘Totally evil’

In May 2021, a high school library in the Penncrest district about 100 miles north of Pittsburgh displayed several books addressing LGBTQ+ issues in anticipation of Pride Month in June.

A visitor posted a picture of it on Facebook, along with negative comments about the books.

Within hours, at least three school board members reposted the comments and promised an investigation.

“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,” wrote school board member David Valesky. “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.’”

The issue was debated at multiple public meetings attended by hundreds of local residents.

In January 2023, the sprawling, mostly rural district with 2,476 students, revised its policies on books containing “‘sexualized content.’”

Thirteen books were later removed from its libraries, according to court records, including “To Kill a Mockingbird,” and “Beyond Magenta; Transgender Teens Speak Out.”

Cagle, 74, a retired county government employee who lives in Saegertown, watched the conversations about the library display unfold, first on Facebook and then at the board meetings. He was blocked from the Facebook discussion by one of the board members.

“I felt there was a lot of discussion going on behind the scenes between the public officials on their Facebook posts,” Cagle told TribLive Wednesday. “I just thought what was going on was so egregious there needed to be some discovery.”

‘Secretive behavior’

In June 2021, Cagle filed a request under the Right-to-Know Law. He sought comments related to “homosexuality,” school curriculum and other topics from the personal emails and Facebook accounts of Valesky and Luigi DeFrancesco, who was then a board member.

The district said no, claiming the posts were not official records because they were made on personal accounts.

Cagle appealed to the Pennsylvania Office of Open Records, which found in his favor. It ordered the district to turn over the records. Crawford County Common Pleas Senior Judge William R. Cunningham upheld the decision on appeal.

Cunningham said the Facebook posts — even if made on a private account — can become a public record if they were created by a board member and contain information related to school business.

In this case, he said, “the subject matter goes to the core of the educational mission and responsibilities of the Penncrest School District.”

Cunningham said that the Right-To-Know law is designed to ensure the public is fully informed on what its officials believe or intend to do.

“For example, the 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,” the judge said.

“A public official cannot pander to chosen constituents on a personal Facebook page and then hide such views from the public on a matter involving a school activity or business,” Cunningham wrote. “It is the type of secretive behavior the [Right To Know Law] was designed to illuminate.”

The district appealed to Pennsylvania’s Commonwealth Court, which ruled in its favor and overturned Cunningham in April 2023.

Cunningham, the court said, applied the wrong legal standard to determine whether the Facebook posts were “records” under the law.

Instead, the court created its own test: Does a social media account have the “trappings” of an official agency account?; do the posts show activity of an agency?; were the materials created or received by the public official in their official capacity?

Official business…or not?

Cagle’s son, Brian Cagle, a lawyer, argued his father’s case, telling the Supreme Court justices there was no reason for the Commonwealth Court to create a new test to determine if Facebook posts were public.

Cagle argued that the legislature didn’t intend to create a “Facebook loophole to hide information…”

The new test, Brian Cagle said, undermines the Right-to-Know Law.

Cagle said it was clear that the board members were engaged in district activity when they made their posts.

Justice P. Kevin Brobson countered that the state’s law was created to provide access to decisions officials make, agendas, contracts and financial information.

“Activities engaged in in your personal capacity do not document transactions of the agency,” Brobson said.

Cagle disagreed. The board members who discussed the book display on Facebook addressed their posts to the parents of the school district and ultimately voted to change policy, Cagle said.

Attorney Jordan Shuber, who represented the district, argued that the Facebook posts were private.

Justices Christine Donohue and David Wecht disagreed, noting that the original post began: “‘Hey Maplewood/Penncrest parents.’”

“This is the antithesis to private,” Wecht said. “He’s appealing to an audience to incite action or resistance or uproar. Isn’t it exactly the opposite of confiding something privately?”

Shuber countered that the board members’ posts were not made on the district’s official Facebook page.

“Arguably, we’re here because someone reshared a post,” Shuber said.

“That’s not what happened here,” Donohue said. “If the school board members just reposted, we would not be here.”

Shuber told the court that the school board members never held any secret vote.

Wecht, however, said, “These are elected officials discussing board business and talking about actions that are going to be taken. I don’t know how that’s not activity of the agency.”

Opening the floodgates

Shuber claimed that if the court sides with Cagle, it might open the floodgates for endless litigation seeking public officials’ social media records.

Brobson seemed to agree, saying that state representatives and judges who post on social media on any issue that touches a policy position could be subject to having to turn over their records.

“That’s how the Right-to-Know Law will be used going forward,” Brobson said.

After the hearing, the Pennsylvania NewsMedia Association’s Melewsky said that’s not true.

“I think the parade of horribles is based on a fundamental misunderstanding of the law,” she said. “At least one justice suggested the Right-to-Know law applies to legislators and jurists when it does not by its plain terms.”

Further, she said, Pennsylvania’s law has a slew of exemptions, including one for personal information.

“As public officials’ use of social media increase, so too will requests — especially where we have such a divided political environment.”