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Ark. AG opinion: Citizens have right to video record meetings

Wednesday, April 11, 2012

An Aug. 8, 2011, Fulton County Quorum Court vote baning video recording of its meetings may be in question -- along with a January "no video" decision by the Calico Rock City Council. On April 2, Attorney General Dustin McDaniel issued an opinion that video taping public meetings is allowed under the state's Freedom of Information Act, and "opposition" or "discomfort" with video taping is not a valid reason to prohibit it. Photo by Richard Irby [Order this photo]
The Calico Rock City Council and the Fulton County Quorum Court, the only known government bodies in Arkansas to ban video recording of their meetings, may want to reconsider their decisions in light of a legal opinion issued on April 2 by Attorney General Dustin McDaniel.

In January, the Calico Rock city council outlawed video recording because council members claimed a video camera was "disruptive."

In August of 2011, the Fulton County Quorum Court banned the video recording of its meetings because some Justices of the Peace felt "intimidated" by the cameras.

But McDaniel's opinion supports the right of the news media and citizens to make video recordings of public meetings.

"In the twenty-first century -- where video cameras are ubiquitous... -- "reporting fully" on a public meeting reasonably includes being able to provide video of that meeting...The landslide of authorities from various jurisdictions testifies to the fact that videotape has become a standard way of reporting," is how the Attorney General's Opinion summed up his office's investigation into whether video recording of public meetings should be allowed.

State Senator Missy Irvin asked for the Attorney General Opinion at the request of the White River Current, the Calico Rock newspaper which touched off controversy when it began taping meetings and posting them on its web site for people to view.

The Attorney General was asked to address three questions.

The first was: Does the Arkansas Freedom of Information Act (FOIA) grant citizens the right to make a video recording of a public meeting of elected officials?

The Attorney General reply was, "yes." According to the opinion, the FOIA act exists to foster greater openness and more disclosure (of government proceedings). Therefore, the opinion states, "I believe there are good grounds to conclude that our FOIA affords persons the right to videotape a public meeting. According to my research, this also accords with the law in the overwhelming majority of states."

A second question asked if a city council in Arkansas can prohibit video recording of its meetings by claiming the activity is "disruptive," and can a member's opposition or discomfort to being taped constitute "disruption?"

The opinion concludes that a government body has the right to impose "reasonable regulation" of the right to video tape, to insure the activity does not disrupt a meeting. For example, a body can require that taping equipment be silent, and not be placed in a location that interferes with attendees' ability to see or hear proceedings, or come and go from the meeting room.

But the opinion concludes that: "There is nothing intrinsically improper or disruptive about videotaping public meetings such that videotaping could be entirely banned,"... "In my view, the mere fact that a member of the public body is uncomfortable being filmed is not a sufficient reason to ban the videotaping."

A final question asked whether the First Amendment to the U.S. Constitution (the right to free speech) grants citizens the right to record public officials in the performance of their duties.

The Attorney General's reply was that the First Amendment does not give people a right to videotape public proceedings. Arkansas' FOIA appears to give greater rights than does the First Amendment.

The opinion went on to note, however, that all 50 states have some version of what is called "an open meetings act," 31 states have statutes that "expressly permit the video recording of public meetings" and Arkansas is one of 17 states who have open meeting statutes that "are silent on whether people can videotape public meetings."

State Senator Irvin said part of her job is to serve as a conduit between constituents and the Attorney General, when there is a need for a legal opinion.

"I did not take a position on either side of whether video recording should be allowed," Irvin said. "I simply made the request for an opinion to help clarify the existing law, just as I have done for Mayors, Aldermen and others who have asked for Attorney General opinions."

Irvin said, to her, the opinion does clarify that video recording of public meetings should be allowed -- while giving government bodies the right to set reasonable rules to insure that meetings operate in an orderly fashion.

"I hope both sides (at Calico Rock) can use this opinion to work out their dispute using common sense and the law," Irvin said.

"This is the fourth time (since 1977) an Attorney General's opinion has upheld the right to film or tape government meetings," said Rich Fischer, co-publisher of the White River Current. "Given this new AG opinion, combined with the three already on record, the Calico Rock City Council's decision to prohibit video recording of its meetings seem to be a clear violation of the Arkansas FOIA."

Fischer admits that an Attorney General's opinion is not legally binding, but believes the opinion may motivate the Calico Rock City Council to reconsider its ban on video recording.

Fischer and Francis have consulted an attorney, however. Fischer added that taking the issue to court could help resolve, once and for all, the issue of whether video recording at government meetings is legal.

"I believe it would be difficult for a judge to ignore four different Attorney General opinions," Fischer said. He believes there is a need for a court decision upholding the public's right to video recording, to establish a precedent -- a rule of law -- that the state does not currently have.

"I think it's wonderful," Fulton County resident Nancy Cole said of the Attorney General Opinion.

Cole and her husband, Jack, began video recording Fulton County Quorum Court meetings in July of 2011, because they had a difficult time hearing what Justices of the Peace were discussing at their meetings. The Cole's intention to record and listen to meetings at home ended on Aug. 8, when Quorum Court imposed a rule banning video recording by a six to three vote.

"We have been talking to state Representatives and Senators about getting a bill introduced in the next session specifically adding "video recording" to the Freedom of Information Act," Cole said. She believes the Attorney General opinion may help motivate the legislature.

"This thing has gone viral," Fischer said -- people and groups from all over the country have used the internet to obtain the opinion, and many have contacted the White River Current about its fight against a ban which the newspaper believes curtails the public's right to freedom of information.

The latest Attorney General opinion was prepared by Assistant Attorney General Ryan Owsley, and approved by Attorney General McDaniel.

The full opinion is available at the Arkansas Attorney General's website -- www.ag.arkansas.gov. The opinion number is 2012-022.

Update -- Both the Calico Rock City Council and the Fulton County Quorum Court met this week, and neither addressed the issue in open session.

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I would just sit at a seat, set up my camera and video tape. If they attempt to halt me or eject me from the meeting, then it too will be recorded. The FOIA gives individuals the right to record and if they try to stop it, it only shows me they have something to HIDE and that my friends goes against the whole purpose of the Freedom Of Information act! It's called checks and balances and if they don't like it, I suggest they resign and let someone else take over that believes in our freedom and rights.

-- Posted by FOHA on Wed, Apr 18, 2012, at 3:33 PM

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