Q: A local agency requires citizens to notify the agency 48 hours in advance and get permission if they plan to record public meetings. The policy also threatens criminal sanctions under the Pennsylvania Wiretap Act if a citizen records a public meeting without permission. Is that consistent with the law?

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

Section 711(a) of the Sunshine Act states:

• “A person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings.”

It further provides:

• “Nothing in this section shall prohibit the agency from adopting and enforcing reasonable rules for their use under section 710 (relating to rules and regulations for conduct of meetings).”

The right to record public meetings includes audio and video recording.  See Hain v. Board of School Directors of Reading School District,   641 A.2d 661 (Pa. Cmwlth. 1994).

Section 711, along with section 710, allows agencies to create reasonable rules governing the conduct of public meetings, including the use of recording devices.  However, 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 and is contrary to the law. Moreover, the Sunshine Act already grants permission to record public meetings to anyone in attendance.  Local officials do not have authority to rescind statutory rights guaranteed to citizens under state law, and they cannot grant (or refuse) permission locally when permission has already been granted statewide by statute. 

With regard to criminal sanctions, the policy 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 an expectation of privacy. The Wiretap Act does not prohibit the recording of public meetings, nor does it require attendees to obtain permission from the agency or individuals at the meeting to record public meetings.  The Act’s prohibition on recording oral communications only applies where there is a reasonable expectation of privacy (or a reasonable expectation that a conversation will not be recorded), and Section 711 of the Sunshine Act expressly permits anyone attending a public meeting to record “all the proceedings.”  In light of the Wiretap Act’s limiting language, and the express permission to record public meetings granted by the Sunshine Act, the Wiretap Act’s limitations do not apply to public meetings, and attendees should not have to announce their intent to record or obtain permission to record public meetings to avoid Wiretap Act issues. 

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