So, can you tape that public meeting? The answer is that there might need to be a law.

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:

flandreau_naughty

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?

Marty JackleyAttorney 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.

and…

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.

Read that here.

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.

16 Replies to “So, can you tape that public meeting? The answer is that there might need to be a law.”

  1. Per Curiam

    A reporter or blogger should press the case.

    Go to a Flandreau city council meeting, try to record it, and if accosted, volunteer to be arrested.

    Allow a court to decide if the removal/arrest was warranted w/o passing a new law.

    I do not see any discernable legal difference between taking verbatim notes, an accurate drawing, or an unobtrusive mechanical audio/visual recording.

    Reply
    1. Betty Breck

      In my opinion, it would be better to just go to the meeting and videotape it openly but not obtrusively. If the public body or its attorney tells you to quit, just quit. Then file a complaint with the Open Meetings Commission. (See directions and information on the SD Attorney General’s website.) This gets the question before a quasi-judicial body authorized to make a decision on it.

      I videotaped the Groton City Council meeting October 21, 2015, with no problem. A local newspaper editor had requested the Council’s approval for videotaping and live-streaming the meetings. The Council put off a decision until the next meeting. I wanted to demonstrate that permission is not needed to videotape public meetings. I’ll video the next meeting also, and let the Council know that I plan to broadcast it on the internet.

      I’m also getting in touch with legislators who have previously supported open government to ask that they propose legislation to specifically allow it. By the way, 31 states have laws specifically allowing videotaping, two allow it in some cases, and 17 (including South Dakota) do not address the subject.

      I encountered a similar situation in Alaska 25 years ago when my daughter’s 4-H leaders and visiting State Extension Service agent would not allow me to tape record a 4-H meeting. (4-H is a subsidiary of University Extension, so meetings are subject to open meetings laws.) I took them to court and they settled out of court, agreeing to allow such recording in the future but not admitting any wrongdoing.

      Reply
      1. Donna McCoy

        Our local school board has not tried to stop videotaping because there are Sunshine Laws, but has now published a new policy saying persons wanting to post any media, video, photos from Board meetings must get written permission by School Board?

        Is this legal? Seems like infringes on 1st and 14th Amendment rights? Can anyone answer legal question of can school board stop you from uploading videotape of public (open) school board meeting?

        Reply
    2. Betty Breck

      In my opinion, it would be best to just go to the meeting and videotape it openly but not obtrusively. If the public body or its attorney tells you to quit, just quit. Then file a complaint with the Open Meetings Commission. (See directions and information on the SD Attorney General’s website.) This gets the question before a quasi-judicial body authorized to make a decision on it.

      I videotaped the Groton City Council meeting October 21, 2015, with no problem. A local newspaper editor had requested the Council’s approval for videotaping and live-streaming the meetings. The Council put off a decision until the next meeting. I wanted to demonstrate that permission is not needed to videotape public meetings. I’ll video the next meeting also, and let the Council know that I plan to broadcast it on the internet.

      I’m also getting in touch with legislators who have previously supported open government to ask that they propose legislation to specifically allow it. By the way, 31 states have laws specifically allowing videotaping, two allow it in some cases, and 17 (including South Dakota) do not address the subject.

      I encountered a similar situation in Alaska 25 years ago when my daughter’s 4-H leaders and visiting State Extension Service agent would not allow me to tape record a 4-H meeting. (4-H is a subsidiary of University Extension, so meetings are subject to open meetings laws.) I took them to court and they settled out of court, agreeing to allow such recording in the future but not admitting any wrongdoing.

      Reply
  2. Anonymous

    No one should press the case. Individuals, reporters and bloggers should continue to record public meetings and if the government doesn’t like it than the government should sue the individual, reporter or blogger. We don’t need to write a law on this issue. Meetings are open and public. A private citizen (media or otherwise) does not create a public (read government and therefore open to the public) document when they record but the government body does not. This is just plain goofy.

    Reply
  3. Joey

    The public body has the right to request that the only “official” recording of the proceeding, be produced by them. They are responsible for the decorum of the meeting – and there is no “right to record” anywhere in law. You have the right to be there, but not necessarily disrupt the meeting by recording the participants for nefarious editing purposes. Ask for a copy of the official tape later.

    Reply
    1. @SoDakCampaigns Post author

      What?!? Who besides the city would claim that that have the “official” recording?

      That’s not a valid reason to deny others the ability to record a public meeting. And it’s silly.

      Reply
    2. Per Curiam

      “and there is no “right to record” anywhere in law”

      Actually, in SD, one may record a public or private conversation as long as one party consents.

      Obviously, there is no expectation of privacy at a public meeting, nor is a public meeting a ticketed event.

      Reply
  4. Charlie Hoffman

    The laws regarding recording court room trials will be used for guidance in open meeting laws written covering recording of those meetings.

    Reply
  5. Mark N.

    Before I begin this comment, let me first say that I support video taping of public meetings, but I’m going to play devil’s advocate here, because I think this debate is a little one-sided.

    The rationale for barring audio/video recordings is that they change the dynamic of the meeting. When people know they are being permanently recorded, they ask less questions and say less in debate. Many people don’t want to risk looking uninformed by asking a question they think they should know the answer to. Or those questions get asked to a government employee or one other city council member before the meeting instead of during it. And people are less likely to debate something in front of a camera if they think they are unlikely to win. Why go out on a limb by yourself to fight for something if it won’t make a difference?

    Now, before everyone jumps up and down and says that if you’re not willing to take the heat you shouldn’t run for office, this reluctance to be on video while making important decisions is something shared by many people in our country. It’s just one more thing to scare a talented person away from serving on local government.

    Open meetings laws are designed to prevent corruption by keeping decisions in the open. The public being able to attend all meetings, take notes, and publish those notes takes care of most of that. Turning on a camera does little extra to combat corruption.

    In the end, I’m saying that there is a trade off. The net result of turning on a camera may actually be less transparency because less will get said during the meeting.

    Reply
  6. Troy Jones

    Mark,

    I think there is an additional reasons:

    1) Iintegrity of the recording. City Hall meetings in SFalls are recorded, broadcast on the city’s cable channel, and available on the website. Private recordings may miss what people are responding to and thus taken out of context.

    2a) Not everything at a public meeting is public information. A city counselor who leaves his/her seat for a conversation about a matter with the city attorney may be privileged under personnel law or health privacy law. Private recordings become something that has to be monitored.

    2b) Private citizens at public meetings don’t automatically waive their privacy. Two private people talking in the back may still be done with an expectation of privacy.

    Reply
    1. Per Curiam

      “Private citizens at public meetings don’t automatically waive their privacy.”

      Actually they do waive any expectation of privacy.. People having a conversation in public have no [legal] expectation of privacy, and therefore it may be recorded, even with a long lens or a parabolic microphone.

      “Two private people talking in the back may still be done with an expectation of privacy.”

      But it’s not a REASONABLE expectation of privacy, and therefore, has no legal protection.

      Reply
    2. Per Curiam

      “about a matter with the city attorney may be privileged under personnel law or health privacy law.”

      1. ANY conversation between an attorney and supposed “client” that is overheard or otherwise observed by a third party (inadvertently or not) loses ANY privilege it may have had.
      2. The client of a city attorney (presumably paid with public funds) is the CITY, not any city council member; therefore, there is no attorney-client privilege between the city attorney & council members or the mayor or any other city employee. Now, a council member can seek legal advice from the city attorney or any other attorney (for which he had no attorney-client relationship), but the advice or conversation is certainly not privileged (or confidential) advice.

      Reply
  7. Anderbilt

    We should be encouraging all civic bodies in the state to be doing live webcasting with archived records online for their constituents, like the legislature and the state’s bigger municipalities already do. Whether they hire their own city / county A-V people, or work a deal with their local cablecoms, it can be and should be done if they don’t want reporters dragging in mic stands and personal video equipment on their own accord. We’re in an age where all this is very easy and cost-effective, and there’s no reason not to do it.

    Reply

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