VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-10-05

July 6, 2005

Bruce Bennett
Vienna, Virginia

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 telephone call of June 9, 2005, and your electronic mail messages of June 10 and June 16, 2005.

Dear Mr. Bennett:

You have asked whether you have the right, under the Virginia Freedom of Information Act (FOIA), to make video recordings of meetings of a "Special Study Group" (the Study Group) appointed by the Fairfax County Board of Supervisors (the Board). You indicated that you brought video recording equipment to a meeting of the Study Group and a county employee challenged your right to record the meeting. Apparently the employee stated that under FOIA, a public body has the discretion to disallow such recording by citizens. However, although your right to record was challenged, you were permitted to record that meeting. You indicate that you intend to record future meetings of the Study Group, and would like an opinion from this office to help resolve any issues that may arise should you again be challenged regarding your right to record a public meeting.

As a threshold matter, it must be determined whether the Study Group is a "public body" subject to the requirements of FOIA. "Public body" is defined in § 2.2-3701 to mean any legislative body, 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. It shall include ... any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. According to the Clerk's Board Summary dated March 21, 2005, it appears that the Board created the Study Group as a "a task force ...to guide this effort and to make a recommendation to the Planning Commission and Board," and that there was a motion passed by open vote "that the Board authorize a special study."¹ The Clerk's Board Summary dated April 4, 2005 indicates that the Board appointed by vote twenty citizens to serve on the Study Group.² Thus it appears that the Study Group is a committee, subcommittee or other entity...of [the Board] created to perform delegated functions of [the Board] or to advise [the Board]. The Study Group is therefore a public body subject to FOIA.

Turning now to the question of whether a public body may restrict a citizen from recording a public meeting, 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 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.

As previously opined by this office, 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.³ The prior opinion addressed what rules and restrictions a public body may assert regarding the placement and use of recording devices. The opinion concluded that 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. 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.⁴

In this instance, it appears that the public body has asserted that it may prohibit outright the recording of its meetings, in its own discretion. Such an assertion stands in direct conflict with the law set forth by the General Assembly in subsection H of § 2.2-3707, quoted above. The public body does have the discretion to impose restrictions upon the placement and use of recording devices to prevent interference with the proceedings, but cannot prohibit or impose restrictions that effectively prohibit recording public meetings.

You also asked whether such a prohibition on recording would violate your First Amendment rights under the federal Constitution. This office is limited to providing guidance regarding FOIA, and cannot offer an opinion regarding federal constitutional rights.⁵

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Clerk's Board Summary at 26-27 (March 21, 2005)(available at http://www.co.fairfax.va.us/gov/bos/summary/2005/05-03-21.pdf).
²Clerk's Board Summary at 15-16 (April 4, 2005)(available at http://www.co.fairfax.va.us/gov/bos/summary/2005/05-04-04.pdf).
³Freedom of Information Advisory Opinion 03 (2003).
⁴Id.
⁵However, two opinions of the Attorney General of Virginia addressed the issue of the right to record public meetings, before FOIA provided an explicit right to do so as codified in subsection H of § 2.2-3707. You may find these opinions to be of interest regarding your constitutional question. See 1979-1980 Op. Att'y Gen. Va. 56; 1973-1974 Op. Att'y Gen. Va. 457.