TRANSPARENCY TUESDAY: If it’s yours to watch, it’s yours to tape — pushing back against restrictions on recording public meetings

Camera-shy government officials sometimes balk at allowing video recording of meetings that are otherwise open to the public. In olden days, when television cameras were clunky contraptions weighing as much as a Jeep Cherokee and twice as noisy, this may have made sense. Today, thanks to high-res video recorders no bigger than a deck of cards, it doesn’t.

Still, old habits are hard to break. There’s a widespread perception that cameras can be excluded from meetings, perhaps based on the largely abandoned practice of keeping cameras out of courtrooms in state courts — or the still-persisting practice of excluding them from federal courts.

In fact, there is a growing body of legal authority that it is permissible for a member of the public to shoot video and record audio anywhere (except, sigh, federal court) that it’s legal to sit and watch.

One of the earliest such rulings came in New Jersey in 1982, when a superior court judge ruled that a school board could not prevent members of the local teacher union from videotaping board meetings. As the court said in that case — even decades before smartphones made video recording nearly effortless and invisible:

The plain and simple truth is that in today’s modern world, the state of the art is such that it has become a part of the very fabric of modern life. To foreclose its use where the democratic process is complete, as at a public meeting, would not only be unrealistic but irrational.

Last year, a state attorney general’s opinion added Arkansas to the roster of states that recognize a legal right to non-disruptively shoot video in a public meeting. In an April 2012 advisory ruling, Attorney General Dustin McDaniel found that Arkansas’ Freedom of Information Act implicitly recognizes the right to make audio or video recordings in open meetings (in that case, the meeting of a city council).

The McDaniel ruling is a terrific reference that’s worth bookmarking, because it surveys the law of every state and finds that 31 states have a law specifically authorizing the video recording of meetings, and 10 others have a legal opinion or court interpretation that recognizes a right to record. That consensus — 41 of 50 states — is “overwhelming,” McDaniel wrote in adding Arkansas to the list as Number 42.

(As McDaniel said, a government body may still restrict videography if the recording process is itself disruptive. But, he wrote, “there is nothing intrinsically improper or disruptive about videotaping public meetings such that videotaping could be entirely banned.”)

The comfort or discomfort of participants in a public meeting is immaterial to the legal right to record it. A public official may not halt recording, or remove someone who insists on recording, just because speakers would prefer not to be taped. Voluntarily participating in a public meeting before a roomful of strangers waives any grounds for claiming that the taping is invasive of privacy.

If faced with a demand to stop recording or leave the room, politely state an objection and ask for (a) an on-the-record vote be taken to close the meeting and (b) a brief recess for everyone to consult with legal counsel. Better still, research your state’s law in advance and be prepared to make the case for access before a confrontation arises.