Judge Charles Willett ended the court's August meeting by passing out a proposed ordinance "Declaring Rules For Broadcasting, Video Recording, Recording Or Photographing In The Courtroom During Quorum Court Meetings."
"I've had a lot of inquiries about filming our Quorum Court meetings," Willett said, as he passed out the ordinance. "This is an ordinance that I'd like you all to take a look at and see if there's any changes you want to make to it. If we have a motion and second to place it on first reading, we'll do it next month,"
The August 2011 ban on video recording made Fulton County Quorum Court the only known government body in the state to ever outlaw video recording. The ban was enacted despite three Attorney General opinions saying that video recording of public meetings is legal, just as taking notes, using audio recorders and taking photographs is.
Since the 2011 vote, Attorney General Dustin McDaniel issued a fourth "pro video taping opinion," strongly supporting the practice.
Before the vote was taken, County Attorney Dwayne Plumlee told Justices of the Peace that A--G opinions are merely opinions, and no court had ruled on the legality of video recording. Some Justices of the Peace said they and some citizens would be uncomfortable being taped, while others worried that a taped meeting could be edited in such a way to make them look bad.
Three justices who voted against the ban noted that meetings are public, and government bodies all over the state allow taping without question.
While Quorum Court has held firm with its "no video" rule, it has been roundly criticized by citizens and organizations who believe in government transparency. State Rep. Lori Benedict has said, if she is re-elected, she will file a bill to force Fulton County to allow video recording of its open meetings.
The proposed ordinance would only slightly change the Quorum Court's position.
It says broadcasting, video recording, recording or photographing of any Quorum Court meeting shall be prohibited, except for "duly credentialed news media representatives." The news media would have to record video from the back of the court room, and audio recording devices (tape recorders) must be placed in a position designated by the Quorum Court. No distracting light or flash photography will be allowed.
The ordinance goes on to say "other electronic devices," apparently iPhones and similar devices, may not be used in the court room to broadcast, record, photograph, email, blog, tweet, post or transmit while the court is in session.
Under the proposed rules, violators will be removed from the meeting, and can be charged with a misdemeanor. Upon conviction, penalties include a fine of up to $1,000, imprisonment of up to 30 days or both.
Two organizations who regularly defend the Arkansas Freedom of Information Act were asked by The News to review the proposed Fulton County ordinance.
Amber Davis-Tanner, an attorney who gives advice through the state Freedom of Information Hotline, saw many problems.
|"This ordinance is not compliant with the Freedom of Information Act. It does not allow for private citizens to record," Davis-Tanner said.||While "credentialed news media" will be allowed to video record, she added, restrictions on where cameras can be set up must be reasonable. "Restrictions that would prevent the news media from making a usable video or audio recording is the same as saying, 'you cannot tape at all,'" Davis-Tanner said. She also called a possible $1,000 fine and 30 days in jail "overkill."|
Tres Williams, of the Arkansas Press Association, agees it would be illegal to allow the news media to video tape, while excluding private citizens. "The Freedom of Information Act isn't for the media, it is for every Arkansas citizen," Williams said.
Williams questioned Section 2 of the ordinance regarding "Other Electronic Devices," saying that banning the use of citizen-owned devices, such as iPhones, to record, take pictures or notes in the courtroom is a "violation of the spirit, if not the letter, of the Freedom of Information Act. He cited a court case which ruled, "The FOIA should be broadly construed in favor of disclosure."
"The provision on publication and broadcasting are even more troubling," Williams said. "To allow access to, but not publication or broadcast of public proceedings, whether that is via traditional media or Facebook, Twitter, web blogs, YouTube, what have you, would seem to be a violation of the 'prior restraint' doctrine. Therefore, those "restrictions" on dissemination violate the First Amendment to the Constitution of the United States."
Attorney Davis-Tanner added it is not really true that Attorney General opinions have no weight because they have not been tested in court. Davis-Tanner was involved in a FOIA lawsuit which was ruled on by the Arkansas State Supreme Court during its last session.
"The court extensively quoted from past Attorney General opinions in resolving an FOIA case involving open records," Davis-Tanner said. "It is pretty clear, from that opinion, that the Supreme Court will follow an Attorney General's opinion regarding FOIA, unless the opinion is way off base."
Davis-Tanner said the FOIA Hotline is aware that the Calico Rock City Council passed a "no video recording" ban, which was later rescinded. She said there have been "rumblings" of other government bodies who might be considering restricting video recording.
She suggested the proposed Fulton County Ordinance, with its many questionable provisions, may be a good ordinance for FOIA supporters to challenge in court if it is passed into law.
The first public discussion of the proposed ordinance is expected at the Monday, Sept. 10 meeting of the Fulton Quorum Court.