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!