Sunshine Recording Limitations

  • Dec 07, 2017

Melissa Melewsky, Media Law Counsel

Q: A borough is considering a policy that would prohibit recording public meetings where no vote is scheduled to take place, and would require registration at least 48 hours in advance to obtain council’s approval. The policy also limits the right to record to borough residents and taxpayers, and threatens prosecution under the Pennsylvania Wiretap Act for recording a public meeting without council’s express, prior approval. Is the proposed policy compliant with the Sunshine Act?

A:
 No. This policy is not compliant with the Sunshine Act and would likely not survive judicial scrutiny. The Sunshine Act expressly provides for the right to record public meetings, and it does not allow agencies to create policies that conflict with the law’s intent to facilitate recording. Further, the Wiretap Act does not apply during public meetings.

Section 711 of the Sunshine Act states that “a person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings.”  This right has been interpreted broadly the Commonwealth Court, which held that video as well as audio recording is permitted during public meetings. See Hain v. School District of Reading, 641 A.2d 661 (Pa.Cmwlth 1994).  http://law.justia.com/cases/pennsylvania/commonwealth-court/1994/163-pa-commw-479-1.html

The right to record extends to all “meetings,” defined by the Act as “any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” The law does not distinguish between meetings where official action (voting) takes place and those that only include deliberation of agency business. If a quorum is deliberating agency business or taking official action, the meeting is subject to the Sunshine Act and can be recorded.

Further, the requirement to register 48 hours in advance and obtain permission to record is overly restrictive.  Permission to record has already been granted by the General Assembly, and local policies cannot supersede that right. The Act allows agencies to implement reasonable rules and regulations governing the conduct of public meetings, but any such regulation must be consistent with the law. A policy that requires the public to obtain permission from the agency 48 hours in advance in order to record public meetings creates an unreasonable barrier to access that would discourage, and in some cases prohibit, the right to record in direct conflict with the law.

Likewise, the law does not allow agencies to limit the right to record public meetings to residents and taxpayers. Section 710.1 of the Act allows, but does not require, local agencies to limit public comment to residents and taxpayers.  This limitation expressly governs public comment only and does not extend to the right to record, which is governed by a separate section of the law. Public meetings are open to the public, and section 711 of the law expressly extends the right to record to any “person attending a meeting of an agency.”  

Finally, the policy’s prosecution provision illustrates a fundamental misunderstanding of both the Wiretap Act and the Sunshine Act. Pennsylvania’s Wiretapping and Electronic Surveillance Control Act prohibits recording an oral communication without permission where there is “an expectation that such communication is not subject to interception under circumstances justifying such expectation.” For the Wiretap Act to apply, there must be a reasonable expectation that comments will not be recorded. The law does not apply to public discussions at public meetings, as there is no reasonable expectation of privacy in those discussions. Further, the Sunshine Act puts the public and elected officials on notice that recording can take place during public meetings, therefore, the Wiretap Act does not apply.

As always, this is not intended to be, nor should it be construed as, legal advice. Please contact your newspaper’s attorney or the PNA Legal Hotline at (717) 703-3080 with questions.

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