The Pennsylvania Right-to-Know Law applies to social media records in the state, mandating that agencies must preserve public records, which include information stored electronically, irrespective of physical form. Therefore, social media records qualify as public records under the law in Pennsylvania.
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Section 102. Definitions.
“Public record.” A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.
“Record.” Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.
The Pennsylvania Office of Open Records has issued guidance on the Right-to-Know Law, stating that all records are presumed to be public and that emails can be a form of public records. This implies that social media records in Pennsylvania must also be preserved as public records.
A record is defined as “any information regardless of its physical form or character that documents a transaction or activity of an agency AND is created, received, or retained pursuant to law OR in connection with a transaction, business or activity of an agency” (emphasis added).
Records can take many forms, including papers, letters, maps, books, tapes, photographs, film or sound recordings, information stored or maintained electronically, and data-processed or image-processed documents. Note that e-mails can also be a form of public records, subject to any exceptions.
The City of Philadelphia exemplifies how social media records should be managed in Pennsylvania through their comprehensive social media use policy. The policy includes provisions for the retention of social media records, stating that "all postings may be subject to the Pennsylvania Right to Know Act."
4 STANDARDS FOR USE OF SOCIAL MEDIA
4.c.ii.6. All postings may be subject to the Pennsylvania Right to Know Act, the open records provisions in Section 5-1100 of the Philadelphia Home Rule Charter and Mayor’s Executive Order No. 6-92, and other public records and disclosure laws, as well as discovery in litigation. This includes, but is not limited to, information made available through a user’s privacy settings on their own social media and other Internet pages.
4.2 Records Retention
Social media content is subject to the Records Retention and Destruction Schedule established by the Department of Records for the agency, whether or not the social media is currently posted on the agency’s site(s). Agencies are responsible for making and retaining such postings, as required by the agency’s Records Retention and Destruction Schedule.
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