Penncrest School District v. Cagle

In 2021, a Penncrest school librarian displayed books in honor of Pride month. School board members took to Facebook to criticize this display as “evil,” and one noted a plan to bring up the display in the next board meeting. These posts were later made private or removed.

Appellant Thomas Cagle filed a state open records request to access these and any other posts by the board members about both homosexuality and district operations. The Pennsylvania Office of Open Records and the Court of Common Pleas ruled in his favor, holding that the relevant social media posts constitute records and must be released.

The Commonwealth Court of Pennsylvania reversed, adopting a test of three “nonexclusive” factors that, in its view, affect what constitutes a “record” in the case of social media postings: (1) the trappings of the account, including whether the government official “has an actual or apparent duty to operate the account,” (2) whether the “posts prove, support, or evidence a transaction or activity of an agency,” meaning the posts are not “merely informational in nature,” and (3) whether the posts were made in a person’s “official capacity.”

The ACLU and the ACLU of Pennsylvania, along with Pennsylvania attorney Brian Cagle, represent Thomas Cagle on appeal in the Pennsylvania Supreme Court. Their brief to that court argues that because the Facebook posts of the board members addressed district activity and were in the district’s possession at the time of the RTKL request, the information from the posts are “records” that must be disclosed. The Commonwealth Court’s multi-factored test conflicts with the plain language and structural design of the RTKL, and its broad remedial purpose to promote government transparency. The brief also explains why the Commonwealth Court’s decision, if adopted by the state supreme court, would incentivize evasion of the RTKL and limit judicial oversight in RTKL cases.