Asked and Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: Do I have a right to record a meeting of an agency subject to the federal open meetings law (Government in the Sunshine Act)? What restrictions on recording may the agency impose?

A:While the act does not explicitly provide for a right to record meetings, it also does not ban such recording. However, many agencies have adopted regulations that provide that at least some types of recording are allowed. Additionally, some provide specific procedures you must follow, such as providing advance notice of your intent to record.

Before attempting to record a meeting subject to the act, you should consult the agency’s regulations for any restrictions or rules on recording. Where the agency’s regulations do not provide such restrictions or rules, but do not explicitly ban recording, it should arguably be permitted under a provision of the act that provides that all non-exempt portions of agency meetings “shall be open to public observation.”

One common procedure that appears in agency regulations is that you must receive advance approval to use certain types of recording devices. For example, Nuclear Regulatory Commission regulations provide that you “may use small electronic sound recorders to record the meeting, but the use of other electronic equipment and cameras requires the advance written approval of the Secretary.” Similarly, you are entitled, for example, to record meetings of the Election Assistance Commission using “small electronic recording devices.” However, if you plan to use “any other recording equipment and cameras,” you must notify the Commission’s Communications Office in advance and coordinate your planned use of the equipment with the office.

Some agencies’ regulations prohibit the use of certain types of recording devices or restrict their placement in the meeting room. For example, at meetings of the Federal Energy Regulatory Commission, you are permitted to record “by means of electronic or other devices,” “photograph[] . . . by still or movie camera,” and “video tap[e] without lighting aids.” However, “recording or photographic equipment which would require the user to move about the room during the meeting is not allowed.” In meetings of the Postal Regulatory Commission, “[m]embers of the public . . . . may record the proceedings, provided they use battery-operated recording devices at their seats.”

Finally, some agencies’ regulations more generally provide that recording is permitted so long as it does not disrupt the meeting. For example, the Consumer Product Safety Commission provides that “[t]o the extent their use does not interfere with the conduct of open meetings, cameras and sound-recording equipment may be used.” Similarly, the Council on Environmental Quality provides that you “may record open meetings . . . by means of any mechanical or electronic device unless the Council determines such recording would disrupt the orderly conduct of such meeting.”

In summary, many agencies’ regulations explicitly provide that you may record meetings, so long as you follow certain procedures. Be sure to consult the relevant agency’s meeting regulations before the meeting begins.

Q: Can I view documents and attend proceedings in bankruptcy cases?

A:In lawsuits, companies often claim that court proceedings and records should be sealed in order to protect their trade secrets or sensitive business information. This interest is often implicated in bankruptcy cases, which involve the disclosure of companies’ financial information and details about how those funds were handled or, in many cases, mishandled.

Section 107(b)(2) of the Bankruptcy Code, which governs the federal proceedings, authorizes a bankruptcy court to seal “scandalous or defamatory matter contained in a paper filed in a case,” but that provision has been judicially narrowed to allow for public access to judicial records, particularly in light of Section 107(a), which mandates that bankruptcy records be “open to examination.”

Specifically, the U.S. Court of Appeals in Boston (1st Cir.), in In re Gitto Global Corp., a case subsequently followed by several other courts, held that to seal a document filed in connection with a bankruptcy proceeding, the court required two findings: “(1) that the material at issue would alter [the] reputation [of the party seeking to seal the record] in the eyes of a reasonable person, and (2) that the material is untrue or that it is potentially untrue and irrelevant or included for an improper end.”

The media have likewise fared well in attempts to oppose closed bankruptcy hearings. For example, the federal bankruptcy court in Maryland allowed the news media to intervene to attend Rule 2004 examinations — or discovery devices that allow debtors, trustees and other interested parties in a bankruptcy case to examine “any entity” as long as the examination relates to the acts, conduct or property or the liabilities and financial condition of the debtor, or the party filing for bankruptcy. Such examinations, according to the court in In re Symington, have historically been public proceedings, and public access can play a significant role in the bankruptcy process.

On the other hand, however, a federal bankruptcy court in Washington state, although allowing the media to intervene to seek access to the examination, denied their right to attend, finding that the documents examined are similar to unfiled pre-trial discovery materials, to which there is no right of public access. The court in In re Thow, however, did rule that the media would have the opportunity to seek access to the Rule 2004 examination transcript if and when it was filed with the court.