I had previously noted a story where the Flandreau City Council is getting crabby with news reporters who wanted to tape and broadcast public meetings:
I believe the South Dakota Newspaper Association got into it with them, and it’s currently being quibbled over. But I was given some of the information surrounding the city’s basis for refusing to allow it, some of which sounded downright bizarre:
The City’s position: any reporter’s recordings and notes, if just for their own use, are fine. But should someone choose to broadcast and/or live stream the recordings, The City Atty contends the newspaper is creating a public record, and in doing so the reporter would need to properly maintain those records in accordance with SDCL Ch 1-27.
WHAT!?! How on earth does a private citizen create a public record by taping a meeting? Or, how does government assert a copyright of a public meeting? I have the feeling that any such assertion would be utterly, and embarrassingly shredded in a court of law.
Not to mention that if what the city of Flandreau was spouting was even remotely correct, state law provides open inspection and copying of public records, and puts nearly no limitation on their use, absent federal copyright laws.
With the controversy raging, I thought I’d ask our own State’s Attorney General, Marty Jackley about it.
I noted to Marty: There’s an open meeting controversy raging in Flandreau right now where the Flandreau City Council and their attorney have threatened a city newspaper reporter with legal action for wanting to record and broadcast open, public meetings for the public to view in order to know what goes on in those meetings.
The meeting is open, but is the law definitive on the legality & allowance of recording devices in those situations? Statutorily, does the city commission have a leg to stand on? Do they have every right to block any video recording and/or live streaming? Or is that area murky in state law?
Attorney General Marty Jackley’s Reply? “State statutes are silent on the right or limitations to audio and/or video recording of public body meetings. In the first instance, it is up to the legislature to enact laws that either allow or prohibit the recording of public meetings by members of the public. Absent controlling state statutes, the Court may through interpretation of the overall statutory scheme address and define such a right. Until such time, it would appear the public body is responsible for the conduct of their meetings and for maintaining the decorum of their proceedings.”
Wow. State law is absolutely silent? And I’m no closer to any answer as to “Can you tape that public meeting?”
As I found, and you’ll note, the answer is a little more complicated than you think. South Dakota courts have so far been silent on it. And as you can assume from the fact there are no laws on the books, there’s no legislative guidance on the topic, either.
However, in Florida, the issue did come up, and was taken to court. According to the Digital Media Project:
At least one court has held that there is no federal constitutional right to make a video recording of an open meeting, at least not when other methods are available for compiling a record of the proceeding, such as written and stenographic notes or audiotaping. Whiteland Woods, LLP v. Township of W. Whiteland, 193 F.3d 177 (3rd Cir. 1999). Government bodies may therefore place reasonable restrictions on the use recording devices, including a ban on certain devices, in order to preserve the orderly conduct of its meetings.
Even when no state open meetings law affirmatively gives you the right to record, many state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded.
That’s not exactly comforting. In another state, there are “reasonable” restrictions. But, who decides what’s reasonable?
As I understand, in addition to Flandreau, there may be similar controversies in Hartford and Harrisburg surrounding parties wanting to record open meetings.
South Dakota is a conservative state. However, we always believe that our government should be as close to the people as possible.
When a city council believes that having their decisions recorded on video tape is problematic, it might be time to guarantee that the open meeting is fully open, and any possible restrictions to making a recorded record of what took place at the meeting are declared null and void.
As noted by the Attorney General, South Dakota has no legislative or judicial guidance on the topic. As the 2016 Legislative session approaches, it might be time to memorialize what has been a long standing practice by most public boards, and put it into writing in our State’s law books: That private citizens have a right to record and rebroadcast the proceedings of public meetings.
And let no crabby city council members stand in their way.