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SEE YOU IN COURT! - December 2008

December 9, 2008

Authors: Thomas B. Mooney

Mr. Superintendent was tired as he drove home after a busy week of trying to save money for the Nutmeg Public Schools. He had the local news on the radio, but his mind was elsewhere. Suddenly, he was shocked to recognize his own voice. He turned up the volume on the radio, and heard himself talking about the budget freeze and the difficult budget deliberations coming up. Then he heard the reporter’s voice, explaining that the Nutmeg Board of Education would be meeting again next week. Mr. Superintendent was shocked, because he couldn’t remember giving anyone permission to record the meeting at which he was talking.

Mr. Superintendent was not the only person surprised by this news report. Veteran Board member Bob Bombast had already left a message for Mr. Superintendent on his home phone. When Mr. Superintendent returned the call, however, Bob surprised him. “Finally!” Bob said. “We have been trying to get our message out, and I am happy that the media are finally paying attention.”

“But Bob, I didn’t appreciate the secret recording. I think we need a policy.” With that, Mr. Superintendent called Mrs. Chairperson, and they agreed that Mr. Superintendent would bring a policy recommendation forward at the next meeting. He immediately got to work on the draft policy.

At the beginning of the Board meeting, Mr. Superintendent made an announcement. “Tonight, the Board will be considering a new policy about recordings at Board meetings. The procedure is that people who want to record the Board meeting must file an application at least twenty-four hours before the meeting. Recordings will be permitted if they are in the best interest of the Nutmeg Public Schools. This proposed Board policy is subject to three readings, and on the fourth, the Board may adopt this policy. We should have this done by mid-March. Until then, I must caution you, no recordings of our Board meetings will be permitted.”

“Wait a minute,” said Nancy Newshound, from Channel 12. “My public can’t wait until then. I have my crew here tonight . . . .”

“Sorry, Nancy. Your public is just going to have to wait,” responded Mrs. Chairperson. “Let’s get going.” With that, the Board went ahead with its meeting. But Nancy Newshound didn’t accept the Board’s decision. She sat quietly, but clicked her handheld tape recorder on and recorded the rest of the meeting.

Even Bob Bombast was livid the next morning when Channel 12 played the audio from the meeting. The Board convened an emergency meeting that very night to discuss what to do about Nancy’s impertinence. “Nancy intentionally violated our directive, and by doing so, she abused our trust,” said Mr. Superintendent. After a lively discussion, the Board agreed to file a complaint against Nancy with the Freedom of Information Commission, seeking a ruling that Nancy should be barred from attending Board meetings for a month or two.

Will the Board get a favorable reception from the Commission?

                                                                 * * *

Hardly. The Nutmeg Board of Education violated Nancy’s rights. Moreover, it is not clear that the Board even decided appropriately to file its complaint.

The Freedom of Information Act (FOIA) has long provided that meetings of public agencies may be recorded, broadcast or recorded for broadcast. Conn. Gen. Stat. § 1-226. Boards of education do not have the right to decide whether to permit such recording or broadcast. Rather, the statute provides that public agencies must permit “proceedings of such public agency [to] be recorded, photographed, broadcast or recorded for broadcast.” Id. By purporting to prohibit Nancy from recording the meeting, the Board violated this requirement here.

Public agencies may exercise some control over such recording. The FOIA provides that any such recording shall be “subject to such rules as such public agency may have prescribed prior to such meeting.” This provision raises two questions.

First, since any such rules must be adopted before the meeting, what rights does a public agency have if no such rules have been adopted? The statute provides an answer: “The photographer or broadcaster and its personnel, or the person recording the proceedings, shall be required to handle the photographing, broadcast or recording as inconspicuously as possible and in such manner as not to disturb the proceedings of the public agency.” Boards of education, therefore, can prohibit disruptive actions even if have not adopted such rules. However, adopting such rules in advance provides helpful, objective guidance in dealing with such issues.

Second, given the wording of the statute, can the agency could adopt a rule prohibiting such recording altogether? In a word, no. As the Freedom of Information Commission has ruled, “While §1-226, G.S., permits the respondent Board to implement rules regarding the videotaping of its meetings, such provision also grants the public a right to videotape public meetings. Section 1-226, G.S., inherently contemplates that both the agency and the public must act ‘reasonably’ so that both parties’ rights may coexist harmoniously.” Docket # FIC 2008-308 (October 22, 2008).

In considering the statute as a whole, it is clear that “reasonable” regulation of recordings and broadcasting meetings must relate to disruption. While members of the public have the right to record public meetings, they must exercise that right without disrupting the meeting, as discussed above. Thus, the focus of rules to regulate recording or broadcasting meetings must be on disruption.

There is nothing in the statute that requires a person to notify the public agency that he or she is recording the proceedings. The Board, therefore, had no right to require advance notice or otherwise to restrict Nancy’s recording the meeting. Board members must remember that their words may be recorded by anyone at any public meeting.

Finally, the Board has two other FOIA problems. There was no emergency here, and the Board should have held a special meeting after an appropriate posting. Moreover, there was a problem with the Board’s decision-making. Public agencies act by votes. Here, the Board “agreed” to bring an (ill-advised) complaint to the Freedom of Information Commission. Any such agreement, however, was effectively a vote that should have been recorded. When making decisions, boards of education must remember this requirement and vote in accordance with the statute.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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