Defining Agency Records in the Social-Media Age: The “Penncrest Factors” under Pennsylvania’s Right-to-Know Law

1. Introduction

Penncrest School District v. Cagle is the Pennsylvania Supreme Court’s first deep engagement with how the Commonwealth’s Right-to-Know Law (“RTKL”) applies to public-official activity on social-media platforms. The litigation began when citizen-requester Thomas Cagle sought disclosure of Facebook posts made by two school-board members, David Valesky and Luigi DeFrancesco, concerning homosexuality and the District’s programs. Both the Office of Open Records (OOR) and the Court of Common Pleas ordered disclosure; an en banc Commonwealth Court vacated and crafted a list of factors to decide whether social-media posts are “records.” On further appeal, the Supreme Court affirmed the need for a remand but splintered on the proper analytical framework, exposing deep disagreements about statutory interpretation and the line between private and official speech.

2. Summary of the Judgment

The Court unanimously reaffirmed that the RTKL’s definition of “record” entails a two-part inquiry:

Whether the information “documents a transaction or activity of an agency,” and
Whether it was “created, received, or retained pursuant to law or in connection with a transaction, business, or activity of the agency.”

But the Justices divided on how to apply that test to social-media content:

Majority (per Mundy, J.): Endorsed the Commonwealth Court’s non-exclusive “factors” approach and remanded for fact-finding without prescribing exact weight to any factor.
Concurrence/Dissent (Dougherty, J.): Agreed on the need for remand yet criticised wholesale adoption of the lower-court factors, proposing alterations and additional considerations to better capture the statute’s ambiguity.
Separate Dissent: Would have reversed and ordered disclosure outright, emphasizing that the content of the posts alone renders them agency records.

The immediate procedural result is a vacatur of the trial-court order and a remand to apply an articulated, but still fluid, multi-factor analysis. Substantively, the Court establishes that future RTKL disputes over social-media communications must evaluate context as well as content, using what practitioners will now call the “Penncrest factors.”

3. Analysis

3.1 Precedents Cited and Their Influence

A.S. v. Pennsylvania State Police (2016) – Defines statutory ambiguity; used by Dougherty, J., to assert that multiple reasonable interpretations of “of an agency” exist, contradicting colleagues who found the text “unambiguous.”
SWB Yankees LLC v. Wintermantel (2012) – Emphasized a “reasonably broad perspective” for what counts as agency activity; supports a liberal transparency orientation.
Dental Benefit Providers v. Eiseman (2015) – Warned that policy of openness has statutory limits, reinforcing the need to honor text like “of an agency.”
Levy v. Senate of Pennsylvania (2013) – Reiterated RTKL’s expansive transparency purpose, cited to support liberal construction.
Silberstein (2011), Stearns (2012), Baxter (2012), Paint Twp. v. Clark (2015) – Series of Commonwealth Court cases marking the evolving treatment of officials’ personal devices/accounts; the Court’s new framework strives to reconcile these earlier, sometimes conflicting, rulings.

3.2 The Court’s Legal Reasoning

Central to the dispute is the prepositional phrase “of an agency.” Justice Dougherty’s opinion treats the term as inherently ambiguous and insists that a judicially crafted nexus—closer than “any connection” yet looser than formal ratification—is required.

The Commonwealth Court had proposed three categories of inquiry:

Account Trappings – Whether the medium bears official branding or is operated under apparent authority.
Content & Function – Whether the posts “prove, support, or evidence” agency functions or merely provide information.
Official Capacity – Whether posts are produced under, or ratified by, agency authority.

The Supreme Court majority generally blessed this list, cautioning only that no single factor is dispositive. Justice Dougherty, however, criticises the second factor’s down-playing of “informational” content and argues that “official capacity” should not require formal agency ratification but a pragmatic examination of whether the employee was acting within the realm of public duties.

He proposes additional guideposts:

Purpose of the post – Was the aim to advance a governmental objective?
Temporal/Spatial context – Occurred during work hours or on agency premises?
Audience – Targeted to constituents or a closed, purely personal circle?
Role of the speaker – How the content aligns with the official’s actual responsibilities.

3.3 Likely Impact of the Decision

Expanded Discovery Obligations – Agencies must now develop protocols to capture and review public officials’ social-media activity against the Penncrest factors.
Training & Policy Development – Public bodies will need social-media policies distinguishing personal from official use to mitigate inadvertent creation of public records.
Litigation Volume – Expect an uptick in RTKL requests and appeals focusing on Facebook, Instagram, X (Twitter), and emerging platforms; lower courts will refine the factor-balancing through case-specific precedents.
Broader Transparency Culture – The decision underscores that governmental transparency evolves with technology; “open records” now live on digital servers owned by private companies.

4. Complex Concepts Simplified

RTKL Two-Part Inquiry – Think of it as a filter: the information must (a) depict what the government is doing and (b) be created/kept because of that depiction.
“Of an agency” – Lawyers debate how tight the leash must be between an agency and the information. Penncrest says look at purpose, capacity, medium, and context.
“Created…in connection with” – A looser test than “pursuant to law”; asks whether the record was generated because of some governmental task, even if not legally mandated.
Surplusage Canon – A rule of interpretation that every word in a statute should matter; Justice Dougherty worries that equating the first and second prongs makes one superfluous.

5. Conclusion

Penncrest School District v. Cagle propels Pennsylvania transparency law into the social-media era by recognizing that Facebook posts can, but do not automatically, become disclosable public records. The Court declines a bright-line rule and instead inaugurates a multi-factor balancing approach—the “Penncrest factors”—that weighs account trappings, purpose, audience, timing, and the speaker’s role. Agencies now bear the burden of contextual assessment, and public officials must tread carefully when discussing agency matters online. In the wider legal landscape, the decision signals that statutory phrases as short as “of an agency” can carry heavy interpretive freight, and that courts must adapt doctrinal tools to new communicative realities without sacrificing the RTKL’s foundational commitment to open government.