The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Courts have held that the First Amendment protects the right to record public officials (such as police officers) on public streets and sidewalks. But the same might not apply to public meetings in government buildings; such buildings are often seen as "limited public fora" or "nonpublic fora," in both of which reasonable, viewpoint-neutral restrictions are allowed, and one can argue that limits on videorecording are indeed reasonable and viewpoint-neutral. Federal courts, for instance, take the view that bans on recording of court hearings are constitutional; the same might apply to legislative and executive meetings as well.
But state law can provide more protection, as Zink v. City of Mesa, decided today by the Washington Court of Appeals shows (opinion by Chief Judge Rebecca Pennell, joined by Judges Laurel Siddoway & Robert Lawrence-Berrey):
The Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, is a powerfully worded statute that broadly protects the public's right of access to all forms of public meetings. Under the terms of the statute, governmental bodies cannot set conditions on the right to attend a public meeting unless reasonably based on the need to keep order.
Donna Zink was excluded from a Mesa city council meeting because she sought to video record the proceedings. The video recording was not inherently disruptive; Ms. Zink was prohibited from making a recording simply because at least some members of the city council did not wish to be on video. By conditioning Ms. Zink's attendance at the city council meeting on her agreement not to make a video recording, Mesa violated Ms. Zink's rights under the OPMA….
The OPMA recognizes very few avenues for restricting attendance at governmental meetings. The statute recognizes the authority to exclude the public from executive sessions. In addition, the governing body may remove a member of the public who is disrupting the orderly conduct of business. But any such removal must be reasonable.
One of the core protections under the OPMA is that an individual's right to attend a public meeting cannot be restricted to fulfilment of a "condition precedent." RCW 42.30.040. The statute does not define what is meant by "condition precedent." Black's Law Dictionary defines the term as:
An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises. ● If the condition does not occur and is not excused, the promised performance need not be rendered. The most common condition contemplated by this phrase is the immediate or unconditional duty of performance by a promisor.
Under the foregoing definition, extracting a promise not to record as a precondition on attendance at a public meeting would appear to qualify as a condition precedent. This understanding is also consistent with the purpose of the OPMA, which is to grant the people of the state of Washington the right to be informed and retain control over governmental agencies.
The foregoing understanding of the OPMA is consistent with a 1998 attorney general opinion. When asked by a county prosecutor whether "a county legislative body [may] prohibit an individual from using a video or audio recording device to record a meeting or hearing conducted by county officials," the Office of the Attorney General concluded:
A county does not have authority to ban video or sound recording of a meeting required to be open to the public by the [OPMA]; the county could regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
While we are not bound by attorney general opinions, we generally give them great weight. Such weight is especially appropriate here, given the opinion has been in place for over 20 years and the OPMA has been amended several times during this period with no changes that would impact the opinion.
We interpret the OPMA as prohibiting governing bodies from restricting audio or video recordings as a condition precedent to attending a public meeting. This is not to say a governing body cannot exclude a member of the public who is recording a meeting in a disruptive manner. But the undisputed facts show this is not what happened here. The video evidence demonstrates Ms. Zink did not cause a disturbance when she began recording. The discussion between Ms. Zink, Mayor Ross and others was civil and orderly. There were no threats and the discussion took place prior to the council's discussion of items on the agenda. Unlike the circumstances in Kast, Ms. Zink's actions did not constitute an interruption of the council's public meeting. The decision to eject Ms. Zink from the May 8, 2003, city council meeting was not reasonable under the circumstances….