Guest editorial | Tests to review public access worth watching

The following editorial appeared in The (Sunbury) Daily Item, a CNHI newspaper. It does not necessarily reflect the opinion of The Tribune-Democrat.

It will be interesting to watch the impact of a recent court ruling establishing a “three-factor test” to determine when social media posts made on public officials’ personal accounts could fall under the state’s Right-to-Know Law.

The ruling, some officials say, will make it more difficult to access what many say should be public records. There seem to be a lot of moving parts to it, but transparency and access to public records is also an uphill fight in Pennsylvania.

This topic, however, does have some challenges – namely, the status of a social media account in some cases – and the three-factor test is designed to create a standard to make public records public.

The first test reviews the social media account from which the records are coming, determining its status as “private or public, its appearance or purpose, and any actual or apparent duty for public officials to operate it,” according to SpotlightPA.

That leads to the second test, a review of the contents of the account, if they “prove, support, or evidence a transaction or activity of an agency.”

The final test is whether the public official operating the social media account is using it in their “official capacity.”

There are some open- ended concerns, namely that it can be determined on a case-by-case basis how much “weight” each of the tests should carry during the review.

The courts have also acknowledged that the law is evolving, and understandably so, considering that how public officials use social media – across dozens of outlets and offices – changes almost daily, as does the availability of social media and its capabilities.

“It will be important for agencies to remember that, when in doubt, they should err on the side of openness because the (Right-to-Know) Law favors access,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.

“Social media often provides an unfiltered window into public officials’ stance on important issues, and the public has a right to know where their elected officials stand.”

The tests seem to make sense, albeit a bit vaguely.

A public official should understand the difference between a private and public Twitter feed and that, fair or not, when posting, there comes a level of accountability to the office.

There is nothing wrong with having public and private social media feeds, but officials should be clear, careful and consistent when posting to each, with the understanding that official business posted to social media should be a public record.