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[[The Coeur d’Alene School District #271 Board of Trustees will vote, likely at its next scheduled meeting, to approve a policy which violates the Idaho Open Meeting Law.
[[This is bad public policy. [
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This proposed action was first reported in my October 16, 2010, post titled Sit Down, Shut Up, Don’t Record This! . Specifically, the proposed policy (proposed changes highlighted in gray) would prohibit audio and video recording of “open meetings of the Board of Trustees” by anyone other than the Clerk of the Board (or designee) and by local public television access for broadcast and recording. So in addition to prohibiting audience members from making audio or video recordings of public meetings, this “no recording” policy would apparently prohibit the use of audio and video recording devices by commercial news media including the print and broadcast press. This is both bad public policy and just plain stupid.
Like many other states, Idaho has open meeting laws, also called “Sunshine Laws.” Idaho’s open meeting law begins at Idaho Code § 67-2340 with this statement:
The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created. Therefore, the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.
The Idaho Open Meeting Law does not explicitly allow or forbid the people of the state of Idaho to make audio or video recordings of public meetings. However, the Attorney General’s Idaho Open Meeting Law Manual, July 2009 edition, strongly suggests that unless the use of any audio and video equipment would disrupt the orderly conduct of a public meeting and create disorderly conduct on the part of people attending the meeting, Idaho courts would overturn a school district policy prohibiting the use of that equipment.
To support that position, the Idaho Attorney General cites a 1965 California case, Nevens v. City of Chino (44 Cal. Rptr. 50).
In Nevens, the Chino city council had adopted a measure stating that no tape recorder or mechanical device for purpose of obtaining tapes or recordings of council meetings should be permitted in council chamber. The San Bernardino County Superior Court agreed with the policy, however that was overturned on appeal to the 5th District California Court of Appeal. In reversing, the Court of Appeals articulated several points.
First, freedom of the press may be invoked by anyone in the country. It is not necessary that the person be an actual newspaper reporter. The plaintiff/appellant, Joe Nevens, was a newspaper reporter who said he needed to have a complete recording of the meetings to help him write his newspaper stories. The Court said that whether he was a reporter or not, the government could not deprive a citizen of the means to make an accurate record of what happened in a public meeting.
Second, a city council does have the right to adopt and enforce rules and regulations necessary to protect its public meetings. The council can prohibit disturbances at meetings. It can prohibit the use of city electricity to run audio or visual equipment. And the council can take reasonable steps to ensure that the recording process does not infringe the rights of others in the audience to observe or hear the meeting. The Court said specifically that the action (prohibition of all equipment) “… is too arbitrary and capricious, too restrictive and unreasonable. … It bars what clearly should be permitted in making an accurate record of what takes place at such [public] meetings.”
Third, the Court said, “Accuracy in reporting the transactions of a public governing body should never be penalized. … Government measures based on police power should always be well-defined and reasonably exercised. … If a shorthand record of such a meeting is more accurate than long hand notes, then the use of shorthand is to be approved; and if the making of a tape record is a still better method of memorializing the acts of a public body, it should be encouraged.”
Nevens is the case most often cited in support of allowing the use of audio and video equipment as long as it does not disrupt the conduct of the meeting. (See also Sudol v. Borough of North Arlington, 348 A.2d 216.)
There is a 1963 case, now very rarely cited, Davidson v. Common Council of City of White Plains (244 N.Y.S.2d 385), which said that forbidding a member of the public to mechanically record the proceedings at public meetings of council by the use of self-powered recording device was within the council’s legislative powers. Davidson is usually rejected now for reasons most clearly expressed in the Wisconsin Attorney General’s opinion OAG 97-77.
Davidson would permit a public body to prohibit a tape recording of its public or open meeting merely because a member or members of such body, no matter how silent and orderly the operation of the tape-recording process, would feel it “distracts from [the] true deliberative process of [the] body,” with such feeling arising out of a dislike for or uneasiness with the idea of having one’s words, or the words of one’s colleagues, or both, accurately tape-recorded, for whatever the reason. Such a subjective reason for denying a right to tape-record a public or open meeting in a physically nondisruptive manner is, in my judgment, not a good or sound reason for the denial of such right.
In other words, just because public officials, including Trustees of Coeur d’Alene School District #271, would feel uncomfortable knowing comments made during a public meeting were being memorialized digitally or on tape, that would not be sufficient to refuse to allow recording as long as the recording equipment or process does not disturb the conduct of the meeting.
School District Trustees and staff have argued that privately-made recordings could be edited and then used to misstate what was said. The best way to overcome allegedly altered recordings is to produce one’s own indisputably genuine recordings. There are inexpensive ways (e.g., SMPTE time code) to record time codes on one track of a tape or digital stereo recording to show continuity of recording, to show a recording has not been edited.
Trustees and staff have also opined that the public can watch and record the broadcasts of Trustees open meetings on our local government/public education cable television channel. That argument fails to recognize that not everyone has cable television. The argument also fails to recognize that if the Board of Trustees adjourns into executive session, the broadcast and its recording for rebroadcast will stop and may not resume when the Board comes out of executive session to deliberate and vote.
The policy change proposed by the Trustees fails to provide any means of detection or enforcement. Digital voice recorders are silent, small, and easily concealed in a pocket, and they can usually record for several hours. Do the District #271 Trustees propose to search everyone entering the meeting to see if we are carrying prohibited devices? And so what if someone is carrying an audio recorder or camcorder? The policy only forbids recording, not possession of recording devices.
Public attendance at public meetings is to be encouraged. That’s the purpose of the Sunshine Laws. Memorializing those meetings in an unobtrusive manner that does not disrupt the conduct of the meetings ought to similarly be encouraged.
A bad public policy forbidding the nondisruptive recording of public meetings will without any doubt cause people to wonder, “What are the Trustees of Coeur d’Alene School District #271 trying to hide?”
Well said, Bill. This is bad policy that only serves to foster questions about the district.
The first of the so called community chat meetings will take place Monday. I plan to attend.
Comment by Susie Snedaker — November 10, 2010 @ 9:25 pm
I attended the School District #271 Policy Advisory Committee meeting at the Midtown Meeting Center on November 8, 2010, from 4 p.m. until about 6 p.m. According to the meeting agenda, this proposed change (addition)to Policy 262 – Board Meetings, “…[has] been studied and revised by a review committee, sent to the School Board for information, sent out for 30 day comment and are now ready for this Policy Advisory Committee’s recommendation, before going to the School Board for 2nd review and final approval.” While the rest of the Policy Advisory Committee members present dutifully nodded their heads in perfect synchronicity, members Jeremy Boggess and Debbie Morris spoke articulately and persuasively in opposition and voted against it. To prove a point, I recorded the meeting on a digital voice recorder in my pocket. At no time did my recording the meeting disturb or disrupt it, because of course, no one knew it was there.
Since the proposed policy would also exclude news media recorders, I wonder if the Coeur d’Alene Press has objected to it? Reporter Maureen Dolan usually covers the school board meetings for the Press, and I know she often records the meetings unobtrusively on her digital voice recorder (think: Joe Nevens). Maybe Our Miss Brooks has contacted the Press to quietly reassure the editor and publisher that after being adopted, this policy will be arbitrarily and capriciously applied only to the audience but certainly not to the Press.
It’s also interesting that the public will not be allowed to use laptops. In other words, show up with a note pad and #2 pencil, but don’t bring anything that might let you easily and conveniently record any notes.
Maybe we ought to require drug and psychological testing for school board candidates.
Comment by Bill — November 11, 2010 @ 6:36 am
I was there for only fifteen minutes. Barb McFarland was the only other person who asked a question that was quickly answered. It appeared to me that Miss Brooks and the district employee wanted this issue passed. I hope the meeting on Monday is one conducive to discussion – and in an improved atmosphere.
Comment by Susie Snedaker — November 11, 2010 @ 7:22 am
Just take a deep breath. The media will fully and accurately report all the information that we, the public, need to know. Shheeez.
Comment by Happy Trails — November 11, 2010 @ 7:59 am
What was it that The Press recently reported? Out of the 5 trustees, 4 were appointed by the board, and then ran as incumbents? The problem with the SD 271 Trustees is that they don’t believe in democratic elections. There is no representation of the public on the board because they’re all handpicked head-nodders. Until that situation changes, there will be more upset, more outrage, more discontent. The board is its own problem.
Comment by Dan — November 11, 2010 @ 9:44 am
How about the flip side where the public is mistated like in the minutes? We saw that happen not that long ago in a City Council meeting.
Bill, this is your baby. You should contact the Idaho Press Club, President is Betsy Russell. and the Judicial/Media Courts Committee should be interested. Mike Patrick is on that one. I would like to know how they stand on this issues as well. Maybe I will forward this post to them and see if they can provide us with a statement.
So how would this policy apply to state law? I understand that as long as you (person recording) is party to a conversation – maybe with the trustees (or anyone) that you can lawfully record the conversation. This law unlike other states does not require the permission of the other party.
18-6702.Interception and disclosure of wire, electronic or oral communications prohibited.
(d) It is lawful under this chapter for a person to intercept a wire, electronic or ,oral communication when one (1) of the parties to the communication has given prior consent to such interception.
Comment by Stebbijo — November 11, 2010 @ 9:52 am
I did. I asked for input from Betsy Russell and Mike Patrick with a link to this blog article – when they have the time. Hopefully, they will respond.
Comment by Stebbijo — November 11, 2010 @ 10:32 am
Stebbijo,
If you go to my first post and follow the link to the Press article, you will see that at least according to the Press, the media would be excluded from the policy. The media would be allowed to continue to make recordings. But if you look at the revised policy linked above, you will see that explicit exception has been removed. That might mean the school district’s attorney told them that to have any chance of avoiding being in-your-face arbitrary, the policy would have to facially appear to apply equally to everyone. The cynic in me, based on a career of dealing with deceptive public officials and equally deceptive media people, says that the school district has probably very quietly told the news media they can continue to record, that the Board of Trustees will apply the new policy arbitrarily and capriciously only to the general public. Given the gutlessness of our local media, I wouldn’t expect any expressions of outrage from any of them.
Comment by Bill — November 11, 2010 @ 3:05 pm
Well, I am patiently going to wait and see if their silence speaks louder than words – or not.
Comment by Stebbijo — November 11, 2010 @ 4:23 pm
Went to the SD 271 web site. As an aside, it’s a really good site. Lots of good information. The tech dept. did a wonderful job updating the site about a year ago. Anyway:
Here is the text from Policy 242, which covers Trustee Qualifications, that the board is poised to adopt at their next meeting:
Can anyone else see a problem here?
Comment by Dan — November 11, 2010 @ 4:25 pm
Dan,
Sure. What does “…board of trustees is unable to appoint a trustee from the zone vacated after 90 days,…” mean? Does that mean there were no applicants from that zone? Does it mean there were no “acceptable” applicants from that zone, and if so, who makes the determination of qualifications? Without explicit procedures for objective selection, if there is no “right” person from within the zone, a politically acceptable and reliable “right” person will be appointed from elsewhere.
Comment by Bill — November 11, 2010 @ 4:45 pm
unable = don’t want to
Comment by Gary Ingram — November 11, 2010 @ 6:18 pm
Better grammar would be,”is unable” = doesn’t want to
Comment by Gary Ingram — November 11, 2010 @ 6:20 pm
Gary,
Either way, you are correct.
Speaking of grammar, the last sentence in the third paragraph in the new (shaded) policy wording reads:
Subordinate material removed removed, the second clause would read, “Any person attempting to record either audio or video … are strictly prohibited.”
Subject = person Verb = are. Hmmmm. And “prohibited” refers to what — person? What is “prohibited in that clause?
Yeah, let’s hear it for those whiz-bang administrators, Trustees, and teachers who are teaching English to Corrupt d’Alene’s little darling future leaders. Maybe the Board of Trustees contracted with Christie Wood to write that gem.
I may have been wrong in comments 2 and 8 above. The Corrupt d’Alene School District #271 is arbitrarily discriminating against the general public after all. The third paragraph grants an exception to “authorized members of the news media”. Or else “authorized members of the news media are strictly prohibited.” One of the two. I’m sure the Hazel and Edie Show comedy writers will get it
writeriteright.Comment by Bill — November 11, 2010 @ 7:12 pm
I don’t think their policy would be legal, seeing how they don’t have the ability to appoint someone outside of a district without statutory authority. Anyway, it would make for a great lawsuit (even a class action suit) by someone from that district who was passed over.
Further, there is nothing in the policy that addresses the issue of re-election. For example, will their hand-picked replacement always be a rep from that district even during the next election? The policy is vague on that point. Again, I believe that violates Idaho Code in that it doesn’t provide for proper representation from a particular district.
Again, we see efforts by Eddie Brooks and the rubber-stampers on the board to retain the status quo and silence the voices of anyone who disagrees with them. This. Will. End. Badly.
Comment by Dan — November 11, 2010 @ 7:19 pm
Dan,
“Vagueness” and “ambiguity” are absolute requirements in Idaho law, policies, and rules. Specificity and precision could lead to accountability, and that’s something corrupt public officials and judges do not want. In Idaho the law, policies, and rules need to be vague and ambiguous in order to be interpreted and applied differentially and preferentially by those officials and judges. The “no recording by the public” policy proposed by SD 271 is an example. It can be interpreted any way any reader wants to interpret it.
Comment by Bill — November 12, 2010 @ 7:00 am
Bill, vagueness and ambiguity abound in the revised Coeur d’Alene Comprehensive Plan. Shall rather than will is the byword.
Comment by Susie Snedaker — November 12, 2010 @ 8:04 am
I read in today’s Press that Mike Kennedy has asked the city to pay his attorney fees of approximately $105,000. This does not include Mike Haman’s attorney fees of approximately $40,000 that is covered by the city.
Comment by Susie Snedaker — November 12, 2010 @ 8:10 am