Legal Hotline: Public Meeting Policy

  • Sep 10, 2015

Melissa Melewsky, Media Law Counsel

Q:  A borough policy requires citizens to notify the agency in advance if they plan to record public meetings.  The policy also threatens criminal sanctions if a citizen records a public meeting without permission from the agency.  Does the Sunshine Act allow them to do this?

A: No. The Sunshine Act allows agencies to create reasonable rules to govern the conduct of meetings, but the policy described is not reasonable and is based on a misunderstanding of the law.

Section 711 of the Sunshine Act expressly permits anyone attending a public meeting to record the proceedings. Section 710 of the Act allows agencies to create reasonable rules to govern the conduct of public meetings, including the use of recording devices, but any such rule cannot interfere with the statutory right to record meetings or the legislative intent to foster public participation and attendance at meetings. A policy that requires advance notice and permission from the agency in order to record a public meeting creates an unnecessary and unreasonable barrier to access. An agency cannot take away a right that has been expressly granted by the Legislature.  Further, requiring prior notice is unreasonable because the law already expressly provides notice that anyone attending a public meeting can record.  

With regard to criminal sanctions, the policy likely references the Pennsylvania Wiretap Act, 18 Pa.C.S.A. § 5701, et seq., which is designed to prevent unwarranted government interception of private communications, but also prohibits private parties from recording a conversation without prior consent of all parties involved, where there is a reasonable expectation of privacy. The Wiretap Act does not prohibit recording public meetings or require reporters to obtain permission to record public meetings.   The Act’s prohibition on recording oral communications only applies where there is a reasonable expectation of privacy, and Section 711 of the Sunshine Act makes it clear that there is no such expectation at public meetings. In light of the Wiretap Act’s limiting language and the express permission to record granted by the Sunshine Act, the Wiretap Act does not apply during public meetings, and reporters should not have to announce their intent to record or obtain permission to record.  

As always, this is not intended to be, and should not be construed as, legal advice.  Please contact your newspaper’s attorney of the Legal Hotline at (717) 703-3080 with questions.  

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