LGBT ally’s open-records request sent back to lower court

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An LGBTQ+ ally’s open-records request for Facebook posts by two homophobic school board members in northwestern Pennsylvania has been remanded to a lower court for further study.

On April 24, in a 31-page opinion, PA Commonwealth Court vacated a favorable ruling received by LGBTQ+ ally Thomas A. Cagle and sent the matter back to Crawford County Common Pleas Court. 

Cagle, of Saegertown, Pa., believes two homophobic school-board members on the Penncrest School Board are using personal social media accounts to discuss school-district business. Those members are David Valesky and Luigi DeFrancesco.

In May 2021, Valesky and DeFrancesco were displeased with a Pride Month display of books at Maplewood High School, located in Guys Mills, Pa. In a Facebook post, Valesky wrote the display was “totally evil.” Valesky also wrote: “[Students] aren’t at school to be brainwashed into thinking homosexuality is okay.”

DeFrancesco indicated his approval of Valesky’s comments in a follow-up post on his Facebook page. Their posts were featured in a local newspaper and resulted in a public outcry.

Penncrest School District is based in Saegertown, Pa. The school district has six schools, 2,500 students and 200 teachers. In January 2023, it experienced additional controversy when the school board passed an anti-LGBTQ+ library-book ban and a ban on Trans girls competing in girls’ categories on the district’s athletic teams. 

Regarding the open-records controversy, in June 2021, Cagle sought all Facebook posts relating to “homosexuality” by Valesky and DeFrancesco between January 2020 and June 2021, including any posts the two men might have deleted.

When replying to Cagle’s open-records request, the Penncrest School District stated that no such posts existed in the district’s records. The district didn’t even supply Cagle with Valesky’s and DeFrancesco’s anti-LGBTQ+ posts that were spotlighted by a local newspaper.

On June 17, 2021, Cagle appealed to the state Office of Open Records (OOR), which granted Cagle relief and ordered the district to get the records from Valesky and DeFrancesco. The OOR determined that Facebook posts could be considered public records whether or not the district controlled the page in question.

In September 2021, the school district appealed in Crawford County Common Pleas Court, claiming no public records relating to Cagle’s request existed. The district also argued that Facebook posts of Valesky and DeFrancesco were personal communications on their private computers — not public records pursuant to the state’s open-records law.

In December 2021, Crawford County Common Pleas Judge William R. Cunningham rejected the district’s argument and affirmed the OOR’s favorable ruling for Cagle. Cunningham wrote: “[I]f a school board member uses a personal computer to discuss with another board member a school-related matter, a record has been created by the posting board member.”

Cunningham issued his six-page opinion on Dec. 14, 2021. His opinion concludes: “Penncrest has not met its burden of proving the requested information was exempt from Right-to-Know Law disclosure. Accordingly, the appeal by Penncrest is without merit.”

But the district appealed to Commonwealth Court, which last month remanded the matter back to Crawford County Common Pleas Court for further study.

Commonwealth Court Judges Anne E. Covey, Patricia A. McCullough and Stacey Wallace dissented but didn’t issue an opinion explaining their dissenting positions.

The majority of Commonwealth Court said a Crawford County Common Pleas judge must consider three questions in determining whether social media posts by public officials qualify as public records: whether the social media account used for the posts is public or private; whether the “posts prove, support, or evidence a transaction or activity of an agency”; and whether the posts and social media accounts qualify as the products of “public officials in their official capacity.”

However, the majority on Commonwealth Court also said they weren’t ruling out the possibility that a lower court judge could issue another favorable ruling for Cagle after considering those three questions.

Brian T. Cagle, an attorney for his father Thomas A. Cagle, expressed disagreement with the Commonwealth Court’s ruling.

“I don’t agree with the ruling,” Cagle told PGN. “I think it takes a more restrictive view of a public record than what the law intends. The law intends for there to be transparency — so citizens know what business is being conducted by the government. I am hopeful we will receive another favorable ruling after the lower court gives the matter further study. The LGBTQ+ community is particularly impacted because the School Board has shown disrespect toward the LGBTQ+ community. Mr. Valesky, Mr. DeFrancesco and other Board members [allegedly] are still discussing school business and LGBTQ+ matters behind closed doors.”

Melissa B. Melewsky, media law counsel for the Pennsylvania NewsMedia Association, expressed support for transparency on the issue of Facebook posts by elected officials.

“These issues [relating to LGBTQ+ rights] have been popping up across the country,” Melewsky told PGN. “The public has a right to know where their elected officials stand. One of the ways to do that is to review how they interact with the public on important matters, and they often do that on their social media pages. The social media page can provide a window into public officials’ opinions and stance on controversial issues. Restricting access to social-media posts [of public officials] is contrary to the intent of the Right-to-Know Law and it harms the public interest because it creates barriers to accessing information that can shine a light on public officials’ actions. People have a right to know who their elected officials are and how they exercise the power of government, both of which are often laid bare on social-media pages.”

Valesky, DeFrancesco and other school board members contacted by PGN had no comment for this story. Penncrest’s superintendent Timothy S. Glasspool also had no comment.