Officials in Baden Borough directed BeaverCountian.com multimedia contributor Matthew LaComb to sign official paperwork before recording a public council meeting this week. LaComb refused, believing the requirement violated open meeting provisions of the Pennsylvania Sunshine Act.
Experts on the state’s government transparency laws agree with him.
As part of BeaverCountian.com’s efforts to make county and municipal meetings more widely accessible to the public, LaComb attended Wednesday’s meeting of Baden Borough Council and brought with him a small stand containing recording equipment. LaComb said he was approached at the meeting by the borough secretary and presented with a form titled “Registration of Recording Device.”
“I was fully set up, she walked up and said, ‘I’m guessing you’re going to be recording tonight,'” LaComb said. “I told her I was. She said, ‘you’re going to have to fill out this form.’ I told her I was not going to do that.”
LaComb said the secretary informed him that she would be entering his name on the form and he was ultimately not prevented from recording the meeting.
The basic premise of the Pennsylvania Sunshine Act is simple: when a governmental body convenes a meeting of a quorum of its members where “deliberations” or “officials actions” are occurring, the public must be given advanced notice of the meeting and must be permitted to attend. Among the provisions included in the law is a mandate that the public be permitted to record the meeting.
Baden Borough’s registration form requires anyone wanting to record its meeting to provide their name, address, and a description of the recording device being used. The form also requires a signature stating that the person doing the recording “will abide by the rules and regulations set forth in the attached policy.”
The registration document was accompanied by a two-page borough ordinance containing a series of rules and regulations. Among them, the person wishing to record must fill out the appropriate paperwork, provide it to borough officials, and announce the fact they are recording to the entire meeting room.
“The Sunshine Act is very clear that people have the right to record public meetings,” Arneson said after reviewing Baden Borough’s paperwork. “Here, it appears the borough’s ordinance and ‘Registration of Recording Device’ go well beyond what agencies are permitted to do under the Sunshine Act. … There is no requirement that people who want to record a meeting sign a ‘registration’ or any other document.”
Arneson said he does not believe Baden Borough can legally prohibit the use of concealed recorders at public meetings or order people to turn off their recorders during a recess, both provisions of its current policy.
Melissa Melewsky, Media Law Counsel with the Pennsylvania NewsMedia Association, agreed that Baden Borough’s registration form and ordinance fly in the face of state laws guaranteeing the public’s rights at official meetings.
“Requiring people to sign a detailed contract and agree to the terms of an unreasonable policy is not in line with the plain letter or intent of the Sunshine Act. The registration requirement is intrusive and unnecessary because the law does not limit who can record or the type of equipment that can be used,” said Melewsky.
“Further, the requirement that people announce their intention to record is illogical; the Sunshine Act has already put the public (and elected officials) on notice that public meetings can be recorded by anyone in attendance. There is no expectation of privacy at a public meeting, and if the agency wants to educate meeting attendees about the possibility of recording, they should not put that onus on the public, they should simply put up a sign that says ‘Pennsylvania law allows public meetings to be recorded by anyone in attendance.'”
Along with its rules, Baden’s ordinance also contains “penalties” which can be imposed for failing to abide by its provisions, including that a recording device may be “confiscated for the duration of the meeting.” Under the policy, any “improper recording” made during the meeting “will be confiscated and destroyed.”
The ordinance goes on to state that anyone not abiding by the borough’s rules will be removed from the public meeting and barred from recording any future meetings for 90 days.
Melewsky scoffed at the provisions.
“The penalty provisions of the policy that would allow government confiscation and destruction of personal property raise significant Constitutional issues, as does the provision that would prohibit recording future public meetings as a punitive measure.”
Along with making sure they are following the law, Melewsky suggested municipalities like Baden Borough need to ensure they are not discouraging members of the community from involving themselves in local government.
“Agencies need to welcome and encourage public participation, not implement policies that could have the opposite effect,” she concluded.
This is not the first time BeaverCountian.com has found Baden Borough to be in apparent violation of state transparency laws. An investigative report published in Feb. 2018 found that borough officials had been attempting to conduct secret votes to hire part-time police officers.