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Are Public Officials’ Facebook Posts Public Records? The OOR says, “Yes.”

As Published in the February, 2018 Issue of the PELRAS Newsletter

Published on: Thu 8th Feb, 2018 By: Shon K Worner

While it may not seem readily apparent that an elected official’s Facebook posts might be considered a “public record,” that is exactly what the Office of Open Records (OOR) determined in a recent ruling.

In Purdy v. Borough of Chambersburg, the requester sought copies of all Facebook posts and associated comment threads from the Facebook page of the then Mayor which related to or mentioned in any way a rail trail mural proposal that had been presented to the Borough Council at a prior meeting. Purdy v. Borough of Chambersburg, Docket No. AP 2017-1229 (2017). The request specifically included all related posts and comments that had been deleted from the Facebook page, as well as emails and Facebook Messenger messages relating to the topic. The Borough partially denied the request. Though it provided the emails sought in the request, it denied the request for Facebook records on the bases that it constituted the Mayor’s private social media activity and because, it claimed, the posts on the account were not records of the Borough.

The requester appealed the partial denial to the OOR. The OOR directed the Borough to notify any third parties (e.g. Facebook) of their ability to participate in the appeal. In the statement accompanying her appeal, the requester claimed that the Mayor had both a public and a private Facebook account and that the Borough’s website contained a link which linked to the Mayor’s public Facebook page as a means of contacting the Mayor. The requester sought records from the Facebook account used by the Mayor in his public capacity. In its findings, the OOR noted that that the Borough’s official website contained the link, “Find the Mayor on Facebook,” and that the page contained posts and discussions relating to activities in the Borough, including those relating to the police department and Borough councilmembers. The OOR determined that it was immaterial whether the Borough had oversight over the Facebook page, whether it had authorized the Mayor to maintain the account, or that the Borough’s own computer network blocks the use of Facebook. In light of its findings, the OOR determined that the Mayor’s public Facebook page, including the posts and associated comments regarding the mural project, were subject to public access under the Pennsylvania Right to Know Law (RTKL). See 65 P.S. § 67.708(a)(1).

This case is important because it demonstrates the myriad of ways that social media accounts might create obligations for governmental entities in Pennsylvania. If elected officials are inclined to use a social media account such as Facebook to discuss issues relating to their work and role as an elected official, they should be aware that the content on their social media account, including deleted content, will likely be subject to disclosure pursuant to a RTKL request. Similarly, if a municipality operates a social media account, or is inclined to link to any of its elected officials’ social media accounts, doing so may create avenues for an individual to successfully seek posts, comments, and related records under the RTKL. Finally, municipalities and/or the elected officials who operate these accounts should know that they may not successfully defend a RTKL request on the basis that the records maintained on those accounts are not records of the municipality. Accordingly, municipalities and their elected officials should undertake a thorough review and inventory of their social media accounts and carefully consider what social media presence they desire in light of this recent decision.