FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Ross Bell, President
The Capitol Pulse, Inc.
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your e-mail
of December 13, 2002.
Dear Mr. Bell:
You have asked a
question about the restrictions that a public body may impose
on the recording of open meetings under the Virginia Freedom
of Information Act (FOIA).
are concerned about the City of Alexandria's ("the City")
proposed policy on audio and video recordings. One proposed
policy would require that "any microphone or other sound recording
device which is placed either (1) on the dais or conference
table, or (2) within four feet of the seat of any member of
this board [commission][committee], shall be equipped with
a switch, cap, cover or other feature which will, when activated
by a member, preclude the device from recording a conversation
which may properly be kept private under the Freedom of Information
Act." Another policy states that "a member will activate such
switch, cap, cover or other feature to prevent recording only
when engaging in a conversation which may properly be kept
quiet under the Freedom of Information Act. As used in these
rules, a conversation which may properly be kept private under
the Freedom of Information Act means a conversation between
no more than two members of the board [commission][committee],
or between one or two members and one or more non-members
of the board [commission][committee], such as city staff,
aides or members of the public."1
You indicate that
in many instances, meetings of public bodies in the City take
place in facilities where a microphone or public announcement
(PA) system is not in place, and you must provide your own
microphones to record the meeting. You state that you have
two small microphones that you bring to record the meetings.
You place the microphones either on the edge or in the center
of the seating design, depending on the setup of the particular
room. The seating arrangements at the meetings vary from large
boardroom tables to smaller tables set up as a hollow square
or a u-shape. In some rooms, the distance between the public
body and the audience is more than eight feet, while in other
rooms the audience is seated much closer to the public body.
In addition, the acoustics of each room vary greatly.
You question whether
the adoption of these rules would lead to "sidebar" conversations
taking precedent over the recording of the open meeting and
whether this would be permitted under FOIA. Because you only
have two microphones, if members cap the microphones during
"sidebar" discussions that take place while the open meeting
proceeds, this might result in you being unable to tape the
open meeting because your microphone would be blocked. Furthermore,
you state that in some small meeting rooms, because of the
seating design or acoustic qualities, it is not possible to
have a microphone more than four feet away. Under the proposed
rules, you would only be allowed to use a microphone without
a cap if the microphone is placed more than four feet away
from the members.
The policy provisions
found at subsection B of § 2.2-3700 state that the FOIA shall
be liberally construed to promote an increased awareness by
all persons of governmental activities and afford every opportunity
to citizens to witness the operations of government. Subsection
A of § 2.2-3707 of the Code of Virginia requires that all
meetings of public bodies be open, unless specifically exempted
in § 2.2-3711. Subsection H of § 2.2-3707 of the Code of Virginia
states that [a]ny 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.
It appears that
the statute governing the recording of open meetings seeks
to balance the public's right to attend and witness the operation
of government and the public body's right to efficiently run
a public meeting without undue disruption. The rules proposed
by the City generally appear to be an attempt to limit interference
with meetings, and to ensure that any recording is done in
a manner that does not distract from the meeting at hand.
However, in practical application, any rule to restrict the
placement and use of recording equipment by a public body
cannot be applied in such a manner as to essentially prohibit
a member of the public from making an audible recording of
In some instances,
the restrictions you describe would not interfere with recording.
When a meeting is held in a room equipped with a microphone
system where each member of the public body has access to
a microphone, there would be no problem in allowing a member
to turn off or cap his microphone in order to confer privately
with another member or staff. In such a scenario, there would
be no interference with recording a discussion held in open
meeting. However, you also present scenarios where allowing
the members to turn off the microphones during a "sidebar"
discussion might effectively block the recording of the open
It is not possible
to state a bright line rule as to what restrictions a public
body may or may not adopt in governing the placement or use
of recording equipment. However, such rules may not, in practice,
essentially prohibit the public's right to record the meeting.
In some instances, it may be necessary for the members wishing
to confer in a "sidebar" conference to step away from the
conference table or to shield their voices, if turning off
the microphone would prevent a person from recording an open
meeting. In other instances, turning off an individual microphone
may not disrupt the proceedings at all. Likewise, it is proper
for a public body to set a buffer zone for microphones and
other recording equipment, such as the four-foot rule proposed
by the City. However, if a meeting is held in a room that
makes it virtually impossible to set up a recording device
more than four feet away from the public body, then such a
zone could not be enforced at the expense of prohibiting the
recording of an open meeting.
In conclusion, when
examining rules adopted by public bodies governing the placement
and use of recording equipment, one must examine the rules
on a case-by-case basis to determine the practical implications
of their application. Construing liberally the right of the
public to record meetings, rules may be imposed to prevent
interference with the meeting, but not in such a way as would
essentially prohibit a recording from being made.
As a final note,
you question whether the public body must ensure that you
are able to make a recording of a certain sound quality. FOIA
does not speak to recording quality, but only guarantees a
right to make a recording. It seems that if an individual
can make a recording that is audible, then the requirements
of FOIA have been met.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
While not relevant to the conclusion of this opinion, it is
important to note that FOIA does not speak in terms of "private"
meetings, as indicated in this proposed regulation, but instead
refers to open and closed meetings. FOIA defines a meeting
at § 2.2-3701 of the Code of Virginia to include meetings
of (i)as many as three members or (ii) a quorum if less
than three, of the constituent membership. All meetings
are presumed to be open to the public, and a public body may
elect to close a meeting if an exemption at § 2.2-3711 applies
to the discussion. While several of the exemptions found in
§ 2.2-3711 are privacy-based, FOIA does not refer to "private"
meetings. Instead, the discussion of two members of a public
body during the course of a public meeting, as referred to
in the proposed regulation, contemplates a discussion that
does not fall under the definition of a meeting, and thus
is not required to be open. Such a discussion is not deemed
"private" by FOIA. While seemingly minute, this linguistic
differentiation between a private meeting and a meeting not
required to be open is important in maintaining the presumption
of openness and the liberal construction rule set forth in
the policy of FOIA at subsection B of § 2.2-3700.