FOI Advisory Council Opinion AO-03-03

February 14, 2003

Mr. Ross Bell, President
The Capitol Pulse, Inc.
Washington, D.C.

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of December 13, 2002.

Dear Mr. Bell:

You have asked a question about the restrictions that a public body may impose on the recording of open meetings under the Virginia Freedom of Information Act (FOIA).

Specifically, you are concerned about the City of Alexandria's ("the City") proposed policy on audio and video recordings. One proposed policy would require that "any microphone or other sound recording device which is placed either (1) on the dais or conference table, or (2) within four feet of the seat of any member of this board [commission][committee], shall be equipped with a switch, cap, cover or other feature which will, when activated by a member, preclude the device from recording a conversation which may properly be kept private under the Freedom of Information Act." Another policy states that "a member will activate such switch, cap, cover or other feature to prevent recording only when engaging in a conversation which may properly be kept quiet under the Freedom of Information Act. As used in these rules, a conversation which may properly be kept private under the Freedom of Information Act means a conversation between no more than two members of the board [commission][committee], or between one or two members and one or more non-members of the board [commission][committee], such as city staff, aides or members of the public."1

You indicate that in many instances, meetings of public bodies in the City take place in facilities where a microphone or public announcement (PA) system is not in place, and you must provide your own microphones to record the meeting. You state that you have two small microphones that you bring to record the meetings. You place the microphones either on the edge or in the center of the seating design, depending on the setup of the particular room. The seating arrangements at the meetings vary from large boardroom tables to smaller tables set up as a hollow square or a u-shape. In some rooms, the distance between the public body and the audience is more than eight feet, while in other rooms the audience is seated much closer to the public body. In addition, the acoustics of each room vary greatly.

You question whether the adoption of these rules would lead to "sidebar" conversations taking precedent over the recording of the open meeting and whether this would be permitted under FOIA. Because you only have two microphones, if members cap the microphones during "sidebar" discussions that take place while the open meeting proceeds, this might result in you being unable to tape the open meeting because your microphone would be blocked. Furthermore, you state that in some small meeting rooms, because of the seating design or acoustic qualities, it is not possible to have a microphone more than four feet away. Under the proposed rules, you would only be allowed to use a microphone without a cap if the microphone is placed more than four feet away from the members.

The policy provisions found at subsection B of § 2.2-3700 state that the FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Subsection A of § 2.2-3707 of the Code of Virginia requires that all meetings of public bodies be open, unless specifically exempted in § 2.2-3711. Subsection H of § 2.2-3707 of the Code of Virginia states that [a]ny person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body conducting the meeting may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings.

It appears that the statute governing the recording of open meetings seeks to balance the public's right to attend and witness the operation of government and the public body's right to efficiently run a public meeting without undue disruption. The rules proposed by the City generally appear to be an attempt to limit interference with meetings, and to ensure that any recording is done in a manner that does not distract from the meeting at hand. However, in practical application, any rule to restrict the placement and use of recording equipment by a public body cannot be applied in such a manner as to essentially prohibit a member of the public from making an audible recording of the meeting.

In some instances, the restrictions you describe would not interfere with recording. When a meeting is held in a room equipped with a microphone system where each member of the public body has access to a microphone, there would be no problem in allowing a member to turn off or cap his microphone in order to confer privately with another member or staff. In such a scenario, there would be no interference with recording a discussion held in open meeting. However, you also present scenarios where allowing the members to turn off the microphones during a "sidebar" discussion might effectively block the recording of the open meeting.

It is not possible to state a bright line rule as to what restrictions a public body may or may not adopt in governing the placement or use of recording equipment. However, such rules may not, in practice, essentially prohibit the public's right to record the meeting. In some instances, it may be necessary for the members wishing to confer in a "sidebar" conference to step away from the conference table or to shield their voices, if turning off the microphone would prevent a person from recording an open meeting. In other instances, turning off an individual microphone may not disrupt the proceedings at all. Likewise, it is proper for a public body to set a buffer zone for microphones and other recording equipment, such as the four-foot rule proposed by the City. However, if a meeting is held in a room that makes it virtually impossible to set up a recording device more than four feet away from the public body, then such a zone could not be enforced at the expense of prohibiting the recording of an open meeting.

In conclusion, when examining rules adopted by public bodies governing the placement and use of recording equipment, one must examine the rules on a case-by-case basis to determine the practical implications of their application. Construing liberally the right of the public to record meetings, rules may be imposed to prevent interference with the meeting, but not in such a way as would essentially prohibit a recording from being made.

As a final note, you question whether the public body must ensure that you are able to make a recording of a certain sound quality. FOIA does not speak to recording quality, but only guarantees a right to make a recording. It seems that if an individual can make a recording that is audible, then the requirements of FOIA have been met.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1 While not relevant to the conclusion of this opinion, it is important to note that FOIA does not speak in terms of "private" meetings, as indicated in this proposed regulation, but instead refers to open and closed meetings. FOIA defines a meeting at § 2.2-3701 of the Code of Virginia to include meetings of (i)as many as three members or (ii) a quorum if less than three, of the constituent membership. All meetings are presumed to be open to the public, and a public body may elect to close a meeting if an exemption at § 2.2-3711 applies to the discussion. While several of the exemptions found in § 2.2-3711 are privacy-based, FOIA does not refer to "private" meetings. Instead, the discussion of two members of a public body during the course of a public meeting, as referred to in the proposed regulation, contemplates a discussion that does not fall under the definition of a meeting, and thus is not required to be open. Such a discussion is not deemed "private" by FOIA. While seemingly minute, this linguistic differentiation between a private meeting and a meeting not required to be open is important in maintaining the presumption of openness and the liberal construction rule set forth in the policy of FOIA at subsection B of § 2.2-3700.