F. Recording/broadcast of meetings

“All or any part of a public meeting of a public body may be recorded by any person in attendance by means of a tape recorder, or camera or any other means of sonic reproduction, provided that there is no active interference with the conduct of the meeting.”  A.R.S. § 38-431.01(F).

(This section is blank. See the subpoints below.)

In general, whether a meeting may be recorded or broadcast is left to the discretion of the particular public body. The Open Meetings law contains no guarantee or prohibition of recording or broadcast of public meetings. If a public body electronically recorded the minutes of its open meetings on or after August 8, 2001, then it must continue to electronically record all its open meetings; except that electronic recording will not be required for two successive meetings while the regular equipment is inoperable. Colo. Rev. Stat. §§ 24-6-402(2)(d.5)(I)(A) (state) and 24-6-402(2)(d.5)(II)(A) (local).

The photographing, broadcasting, televising, or recording of administrative hearing proceedings is governed in accordance with Canon 3 of the Code of Judicial Conduct. Division of Administrative Hearings Rule of Procedure 6.

At least one court has held that neither the Open Meetings Law nor the First Amendment guarantees the media any right to broadcast a public meeting. Combined Commc'ns Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982). The test applied was whether the potential for disruption of the meeting outweighs the benefit to the public from a broadcast of the proceedings.

If a virtual meeting is held during a state of emergency, the public must be able to review a recording of the meeting within a reasonable time after the meeting concludes. 29 Del. C. § 10006A(e).

Whenever feasible, meetings must be recorded by electronic means.  Any recording or transcript of an open meeting must be made available to the public for inspection. D.C. Code Ann. § 2-578.

The Open Meetings Act states that televising a meeting is sufficient to have it deemed open to the public.  D.C. Code Ann. § 2-575(a).  However, no provision specifically requires or permits the broadcasting of meetings.

In part because the law does not specifically address the taping of meetings, two reporters were arrested in June 2011 for filming a D.C. Taxicab Commission meeting.  Commission Chairwoman Dena C. Reed initially defended the arrests on the grounds that the Commission had banned videotaping of its proceedings because it found television cameras to be disruptive.  See Mike DeBonis, D.C. Taxicab Commission Says It Banned "Disruptive" Videotaping, Wash. Post, June 23, 2011, http://www.washingtonpost.com/blogs/mike-debonis/post/dc-taxicab-commission-says-it-banned-disruptive-videotaping/2011/06/23/AGzlMdhH_blog.html?wprss=mike-debonis.

The Commission subsequently reversed its policy to permit the media to record or photograph proceedings of the Commission at any open meeting so long as they “respect the decorum of the proceedings.”     Under the policy, reporters can connect to the sound system in the meeting room, but individual microphones cannot be placed on the commissioner’s dais.   See DCTC’s General Commission Meeting Protocol Regarding Media Coverage,  D.C. Dep’t of For-Hire Vehicles (Sept. 14, , 2011), https://dfhv.dc.gov/release/dctcs-general-commission-meeting-protocol-regarding-media-coverage.

Although the Sunshine Law does not explicitly allow for the video recording of public meetings, refusal to allow such recording violates the “statute’s spirit, intent, and purpose” if the recording is non-disruptive.  Pinellas Cnty. Sch. Bd. v. Suncam, Inc., 829 So. 2d 989 (Fla. 2d DCA 2002).

Furthermore, the requirement that government board meetings be “public” and “open to the public” does not require that members of the public board be physically present during the meeting. AGO 20-03. The Attorney General’s Office has found that use of electronic media technology and teleconferencing to allow members of a board or commission to participate in a public meeting does not necessarily raise Sunshine Law issues, but implicates the ability of a board or commission to conduct public business with a quorum. See id. (“[If a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either (1) a statute permits a quorum to be present by means other than in person, or (2) the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency.”)

The Act expressly permits visual and sound recording of open meetings. O.C.G.A. § 50-14-1(c).

There is no specific reference in the Idaho Open Meeting Law to recording or broadcasting meetings subject to the law's requirements. It is reasonable to argue that the freedom to record or broadcast such meetings is implied in the law, particularly since most of the public is ultimately informed of such meetings, as with so many other governmental activities, through journalists who report upon such proceedings. Obviously it would be impossible and impractical for a citizen to attend every governmental meeting, judicial trial, session of the legislature and so on.

In practice, recording and broadcasting meetings of governmental bodies is permitted, although broadcasting and recording generally only occurs in regard to statewide bodies or local bodies in larger cities and counties in Idaho. However, the Idaho Legislature has either by rule or by custom required that legislative committee chairpersons give permission before any recording or broadcasting of legislative committee proceedings can occur. This practice has not been challenged as possibly violating the Idaho Open Meeting Law.

Any person is permitted to record the proceedings of a meeting required to be open by the Act, using tape, film or other means. The authority holding the meeting may prescribe reasonable rules to govern the making of such recordings. See 5 ILCS 120/2.05. There is one exception to this. Under 735 ILCS 5/8-701, no witness can be compelled to testify in any proceeding conducted by a court, commission, administrative agency or other tribunal if any portion of the testimony is to be broadcast or televised or if motion pictures are to be taken of the testimony. A witness at any meeting required to be open which is conducted by a commission, administrative agency or other tribunal may refuse to testify on these grounds, and the authority holding the meeting may prohibit such recording during the testimony of the witness. See 5 ILCS 120/2.05.

Sound and photographic recordings are allowed. "The public may use cameras or recording devices at any open session." Public bodies may make rules to keep meetings "orderly, and free from interference." Iowa Code § 21.7.

There is no requirement that a public agency broadcast its meetings. However, as to observers, “[t]he use of cameras, photographic lights and recording devices shall not be prohibited at any meeting.”  K.S.A. 75-4318(e).  However, “such use shall be subject to reasonable rules designed to insure the orderly conduct of the proceedings at such meeting.”  Id.

The Open Meetings Act provides for the right to record and broadcast public meetings. Ky. Rev. Stat. 61.840 (“All agencies shall permit news media coverage, including but not limited to recording and broadcasting.”).

The right to attend a meeting of a public body now includes the right to tape-record, videotape, broadcast live on radio, or telecast live on television the proceedings of a public body, subject to the prior approval of the public body. Public bodies may establish reasonable rules and regulations in order to minimize the disruption of their meetings. Mich. Comp. Laws Ann. § 15.263(l).

All or any part of a meeting of a public body, except for closed sessions, discussed below, may be videotaped, televised, photographed, broadcast, or recorded by any person in attendance by means of a tape recorder, camera, video equipment, or any other means of pictorial or sonic reproduction or in writing. Neb. Rev. Stat. §84-1412(1). Public body may make and enforce "reasonable rules" regarding conduct of persons attending, videotaping, televising, photographing, broadcasting or recording its meetings. Neb. Rev. Stat. §84-1412(2).

While OPMA is silent on the issue of sound and photographic recording of public meetings, the courts have held that such a right to record is inherent in the law. Both sound and photographic recordings are therefore permitted subject to reasonable regulations, which generally should follow the New Jersey Supreme Court Guidelines for still and television camera and audio coverage of proceedings in the courts of New Jersey. See Tarus v. Borough of Pine Hill, 189 N.J. 497, 509-513 (2007); Maurice River Township Board of Education v. Maurice River Township Teachers Ass'n, 187 N.J. Super. 566, 571, 455 A.2d 563 (Ch. Div. 1982), aff'd 193 N.J. Super. 488 (App. Div. 1984).

In Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007) the New Jersey Supreme Court held there was a common law right to videotape a municipal council meeting subject to reasonable restrictions.

Amendments effective April 2011 confirmed prior court holdings that anyone may record open meetings, so long as use of the recording device is not disruptive or obtrusive. Further, the legislation allows meetings to be photographed, broadcast, webcast or otherwise recorded and/or transmitted to those not present, and states that public bodies may adopt reasonable rules governing the use of cameras and recording devices during open meetings, in which case such rules must be written, conspicuously posted, and provided to those in attendance upon request. N.Y. Pub. Off. Law § 103(d) (McKinney 2011 Pocket Part). As of this writing there have been no attempts to challenge this provision, which is in keeping with prior case law.

The right of a person to attend a meeting includes the right to photograph, to record on audiotape or videotape, and to broadcast live on radio or television the portion of the meeting that is not held in executive session, provided that there is no active interference with the conduct of the meeting. N.D.C.C. § 44-04-19(3). The exercise of this right may not be dependent upon the prior approval of the governing body. N.D.C.C. § 44-04-19(3). However, the governing body may impose reasonable limitations on recording activity to minimize the possibility of disruption of the meeting. N.D.C.C. § 44-04-19(3).

The OML does not prohibit sound and photographic recordings.  However, use of electronic communication shall not be used to circumvent the spirit or requirements of the OML.  R.I. Gen. Laws § 42-46-5(b).

All or any part of a meeting may be recorded by any person in attendance so long as the recording poses no active interference with the conduct of the meeting, except that executive session meetings may not be recorded. S.C. Code Ann. § 30-4-90(c).

The Act makes no provision for recording or broadcast of meetings, but those means of public access have been employed, especially by the media. See Op. Att'y Gen. No. 95-126 (Dec. 28, 1995) (proposed city ordinance to ban video or photographic equipment at meeting of alderman would violate Tennessee Constitution and Open Meetings Act).

A person in attendance may record all or any part of an open meeting by means of a tape recorder, video camera, or other means of aural or visual reproduction. Tex. Gov’t Code § 551.023(a). However, the governmental body "may adopt reasonable rules to maintain order at a meeting" so long as the rules may not "prevent or unreasonably impair a person from exercising a right granted under Subsection (a)." Id. § 551.023(b).

The recording or broadcasting of open meetings is not specifically addressed by the law or any court decision, except for meetings intended as a “forum for public comment on a proposed rule,” which must be recorded “electronically.” 1 V.S.A. § 312(a).

Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body may adopt rules with respect to the placement and use of recording and broadcasting equipment so as to minimize interference. Va. Code Ann. § 2.2-3707.G.

The use of cameras and other recording devices may not be prohibited unless they are actually disruptive. RCW 42.30.50; Op. Atty. Gen. 1998, No. 5. As a practical matter, broadcasting, recording and photographing are routinely allowed; however, care must be taken to avoid a secret recording that might run afoul of the state’s anti-eavesdropping statute. RCW 9.73.030.

The Open Meetings Act includes a provision on the allowance of radio and television recordings:

(a) Except as otherwise provided in this section, any radio or television station is entitled to broadcast all or any part of a meeting required to be open.

(b) A public agency may regulate the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting, so as to prevent undue interference with the meeting. The public agency shall allow the equipment to be placed within the meeting room in such a way as to permit its intended use, and the ordinary use of the equipment may not be declared to constitute undue interference: Provided, that if the public agency, in good faith, determines that the size of the meeting room is such that all the members of the public present and the equipment and personnel necessary for broadcasting, photographing, filming and tape-recording the meeting cannot be accommodated in the meeting room without unduly interfering with the meeting and an adequate alternative meeting room is not readily available, then the public agency, acting in good faith and consistent with the purposes of this article, may require the pooling of the equipment and the personnel operating it.

W. Va. Code § 6-9A-9. Given that the amendment allows video and sound recordings to be made by radio and television stations at meetings, it would arguably be arbitrary and capricious to deny reporters and other members of the public the right to make such recordings so long as their recordings as long as they do not unduly interfere with the meeting.

“Whenever a governmental body holds a meeting in open session, the body shall make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting.” Wis. Stat. § 19.90.