Not Ready for Their Closeup?

Localities should not adopt rules that interfere with citizens' right to record open meetings.

Here’s what Virginia’s FOIA says in section 2.2-3707(H) about recording meetings:

Any 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, but shall not prohibit or otherwise prevent any person from photographing, filming, recording, or otherwise reproducing any portion of a meeting required to be open.

And here’s another thing FOIA says. Section 2.2-3700(B):

Any ordinance adopted by a local governing body that conflicts with the provisions of this chapter shall be void.

Quoting statutes is pretty boring, I know, especially one that seems so straight forward.

I mean, it’s clear as day: Any person. May record. Any open meeting.

Yes, there can be rules about where the recordings — which include photographs — take place, but a person cannot be prohibited from recording. And any rule that conflicts with FOIA in general, including this provision, is void.

So it is a constant surprise to me when public bodies seem to misunderstood (or misapply) these sections.

In 2009, two counties held public meetings in courtrooms where the local judges wouldn’t allow recording. When people complained, the General Assembly made it clear, in 2010, that a meeting cannot be held in a place that prohibits recording.

And yet last January a nearby city council held a meeting in a courthouse where no cell phones, cameras, laptops or recording devices were not allowed.

A county east of Richmond told a citizen he could only film from the back of a large auditorium, too far away to pick up the board members’ voices, even though only a few citizens, clustered in the first two rows, attended.

And now we hear about the Loudoun Board of Equalization asking Beverly Bradford to leave a meeting after she took a picture of board members.

The BOE says that Bradford did not follow its rules, which say that people wanting to record a meeting are required to inform the BOE beforehand.

Bradford says she did notify the BOE. The BOE says she did not.

To me, it doesn’t matter because they shouldn’t make a rule that prohibits recording, and essentially Bradford was prohibited from recording the meeting when she was asked to leave (and, indeed, was escorted out of the room by a deputy).

That’s my armchair opinion, not a legal one, but it’s informed by the words in the statute, as well as by spirit of the law, a dash of common sense and sprinkling of public relations.

Though I might not agree, maybe the BOE could legally eject Bradford from the meeting over the photo. But why would you?

Surely the BOE knows how bad this looks to the public. Right?

And it’s not just the public who is concerned about what the BOE’s doing.

After Bradford filed a FOIA lawsuit against the BOE, the BOE went to the Loudoun Board of Supervisors asking permission to hire an outside attorney to defend against the case.

The supervisors wouldn’t give that permission. Moreover, they gave the BOE a little advice: settle the case.

In case the BOE didn’t get the message, the supervisors said it again at another of its meetings: settle the case.

“[Q]uickly resolve the pending [FOIA] case in a manner that ensures open access to meetings, including the ability of citizens to record meetings, without incurring needless cost to the taxpayers,” the supervisors said.

That is sound advice.

Sound. Recording. Yeah!

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

TPKeller December 06, 2011 at 01:34 AM
Sadly you will find that time and time again, all over the country, local governments thumb their noses at the rules and laws that govern their behavior. If it gets bad enough, and if the citizens protest loud enough, the higher body of legislators can resort to "adding teeth" to these statues, making those who violate these rules personally liable to fines and loss of office. One of the better known recent cases of this happened in Florida. For many years, local jurisdictions had been blatantly ignoring the state's firearm preemption laws, and enacting a multitude of local firearms ordinances. (Such preemption laws are required to ensure uniform rules for citizens across the state, and guard against "Boss Hogg" type enforcement, and having to learn hundreds of different laws just to move around within the state.) Florida now has one of the most aggressive firearms preemption laws in the country, where local legislators can now lose their position, and be heavily fined for adding or failing to correct offending ordinances on the local books. What does it say about the character of these legislators when they require real world consequences to force them to obey the laws... these same folks who have been given the authority to write laws for the rest of us? Quite pathetic.
Dan Telvock December 06, 2011 at 05:11 AM
Great piece, Megan. What is happening in Loudoun is truly unbelievable. What's also concerning is the attorney representing the BOE is actually being paid with taxpayer money and he's billed more than $60,000 to date, and the best he has come up with so far is that a board member heard a "click" from the camera and that constitutes disturbing a public meeting. Truly unbelievable. Loudoun residents should be up in arms over this, and even angrier that they are paying John Flannery to fight for closed government. It is important to stress that although the Loudoun Board of Supervisors has so far declined to pay Flannery's bill, county judges are close to forcing it anyway. How can any reasonable person argue that this lawsuit is worth fighting?
DAVE December 06, 2011 at 11:47 AM
This is the kind of nonsense on both sides that grinds our local, state and federal legislatures to a complete halt and costs everyone thousands of dollars in legal fees.
mickey December 06, 2011 at 07:13 PM
The reporters missed the story. After the reporter was tossed out, the board lowered the tax assessment on a piece of property the county was about to buy for three times what it is worth. Half the land is worhless. This board is corrupt and the county knows it.
DAVE December 06, 2011 at 07:30 PM
Once again the media has an axe to grind and this is how they do it. Your telling me the "reporter" couldn't have gotten the story any other way. Wonder what Murrow did before digital tape recorders? I'm all for the FOIA but come on folks, let's not get ridiculous.
Mike December 06, 2011 at 07:36 PM
Wow, Delegate Sickles and State Senator Barker wouldn't allow themselves to be recorded at a public meeting. Keeping the constituents informed is bad. Judge for yourselves: http://www.youtube.com/watch?v=AfgLu0HjxxA
Robin Crabtree December 06, 2011 at 09:46 PM
To Dave: you are ignorant of the facts if you think this has anything to do with the media. Corruption is rampant in politics on many levels of every level of government. Not a news flash here. Great kudos go out to Ms. Bradford for having the gumption to hold officials to legal standards. Perhaps you should be so diligent, but then, it's likely you are simply part of the problem and making excuses as are the members of the Loudoun County BOE for their unlawful behavior. Always the smoke and mirrors!
DAVE December 07, 2011 at 12:31 PM
Oh, Robin, take a Prozac and crawl back into your tent in Farragut Park. The media is just as corrupt as the government. I'm as anti-government as they come, but you're telling me the best way to handle this is to file a lawsuit? That's a good use of everyone's money.
Susan Larson (Editor) December 07, 2011 at 02:34 PM
A reminder as you share your opinions, please be respectful of others, stay on topic and refrain from personal attacks.
Mike Kane December 07, 2011 at 05:26 PM
Good article
Louise Epstein December 08, 2011 at 01:42 PM
Megan, could you explain what types of meetings are subject to this requirement? The Virginia Freedom of Information Act seems to refer to "public bodies." Does the "public body" requirement mean that if a group is incorporated and formed as a private nonprofit, then its meetings are not required to be public?
Dan Telvock December 08, 2011 at 02:57 PM
Louise, FOIA defines public body as: any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.
Megan Rhyne December 12, 2011 at 10:28 PM
Thanks for the save, Dan. I was out of town and didn't see this until today. He's right, Louise. Practically speaking, any government body of elected and/or appointed officials that can make policy/pass laws is subject to FOIA. The definition doesn't apply to staff meetings or other gatherings of public employees (as long as they're not also members of a voting board).


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