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Howell: Open Meetings Law is not a closed issue

Howell: Open Meetings Law is not a closed issue

October 15, 2009
October 15, 2009

Idaho has an Open Meetings Law, but what exactly is meant by the words “open meeting”? That question is at the heart of a battle brewing in Owyhee County.

Idaho statutes 67-2340 through 2347 pertain specifically to open meetings. They describe what open meetings are, when meetings may be closed to the public, what advance notice must be posted, and so forth.

The Idaho Attorney General’s office has even issued a manual on the Open Meeting Law. In the Q and A section, on page 11, question 14 asks if qualifications and restrictions can be placed on the public’s attendance at a meeting:

“A public agency may adopt reasonable rules and regulations to ensure the orderly conduct of a public meeting and to ensure orderly behavior on the part of those persons attending the meeting. In Nevens v. City of Chino, 44 Cal. Rptr. 50 (Cal. App. 1965), the court nullified a city council measure which prohibited the use of any tape recorders at city council proceedings. While acknowledging that the city council had an absolute right to adopt and enforce rules and regulations necessary to protect its public meetings, the California court held that the rule prohibiting tape recorders was too arbitrary, capricious, restrictive and unreasonable. A similar holding might be reached if a governing body prohibits the use of cameras by news and television people, if their presence is not in fact disruptive of the conduct of the meeting.(emphasis ours)

Polling the counties

The Idaho Freedom Foundation conducted a survey of the state’s county commissions, asking if recording devices, such as video cameras, audio recorders, laptop computers, etc. were allowed in their meetings, if there were any venues where commission meetings might be held where such devices would be prohibited, and under what circumstances was it not allowed to record meetings. We didn’t hear back from all 44 counties, but we did get replies from enough of them to see a consensus, generally that video cameras are allowed. Only during executive sessions or indigent hearings, both of which are closed to the public in the first place, are recording devices prohibited. Officials in Elmore and Lewis counties told us they require prior permission to bring in video cameras.

Some officials were surprised that we were asking the question in the first place, as if to say “of course we allow cameras…why would we not?” In other counties, officials said the situation had never arisen, but there was no written policy barring recording devices. Others yet record the sessions themselves, in addition to allowing citizens to tape the proceedings. In Ada County, WiFi is provided, making it possible to blog from meetings, and stream audio and video.

So the matter in Owyhee County begs the question: is a meeting where cameras are prohibited truly “open”? First, a little background.

Can cameras be barred from meetings?

At a September budget hearing held in a county courtroom, a man setting up a video camera was told to take it down by Prosecutor Douglas Emery. When asked why by a group called Owyhee County Citizens for Accountability in Government, Emery e-mailed that an administrative order prohibited the use of cameras or other recording devices in a courtroom or any part of the building designated for court use (any room used by judges, juries, witnesses, even hallways). He further stated that under Idaho statutes, the commission is empowered to “take care of, manage and control” county facilities.

The Idaho Freedom Foundation spoke with Mr. Emery, and he reaffirmed what he had told the OCCAG. “The Commissioners are resolute”, he said, “Idaho case law would have to be cited in order for cameras to be allowed.”

Betty Stappler of the OCCAG contacted Idaho Representative Steve Hartgen, who represents Owyhee and Twin Falls Counties. In turn, he asked the state Attorney General's office for an opinion on the matter. Deputy Attorney General Bryan Kane, wrote back, saying while the law provides citizens the right of access to meetings, it does not give them the right to speak or conduct other business during the meeting. “So long as the policy of the Owyhee County Commission does not infringe upon an attendee’s ability to observe the proceedings, this office cannot say that it (banning cameras from meetings) is inconsistent with the Idaho Open Meetings Law.”

Furthermore, Kane states, “…this office recommends that the taping of meetings should be permitted, provided it is not disruptive to the proceedings, but we also respect the legal authority of the County Prosecuting Attorney to represent and advise his client.”

Hartgen, a former newspaper publisher, says his understanding of the Open Meetings Law is that the use of cameras and other recording devices is allowed. “It was my experience that, generally speaking the right to attend a meeting is consistent with the right to record it, or to take notes, or to otherwise keep a record, provided that in doing so, it didn’t represent a disruption.” Hartgen cited as an example, the use of Klieg lights and other equipment by TV crews (it should be noted that these days, the lighting used by TV crews in the field is smaller and attached to the camera itself).

While Hartgen doesn’t plan at this time to offer a bill in the upcoming legislative session specifically addressing cameras in public meetings, he hopes the Owyhee County Commission will “revisit” the issue. Chairman Jerry Hoagland says simply, “We may revisit it some day.”

So, why is bringing a camera to a meeting disruptive? “Our courtroom, where the commission meetings are held, is pretty small,” Hoagland said. “Trying to set up video equipment can obstruct the view of those attending the meeting. It causes a distraction and takes up quite a bit of space.”

This, of course, begs the question, if the small courtroom isn’t big enough to handle citizens and their video cameras, why is the commission meeting there? After all, Idaho Code 67-2342 paragraph 4 states only:

“A governing body shall not hold a meeting at any place where discrimination on the basis of race, creed, color, sex, age or national origin is practiced.”

Apparently, a commission meeting can be held almost anywhere…a school, a civic group lodge, hotel conference room, etc…provided they don’t bar anyone from attending. Perhaps that’s a question for the citizens of Owyhee County to ask at the next commission meeting.

When is "open" not open?

So the Owyhee County Commission has the law on its side. While it’s not the prevailing mood of the other counties we heard from, they are perfectly within their power to ban video cameras from meetings. But just because they have the right, does that make it “right”? If video cameras are prohibited, is a meeting truly “open”?

Betty Stappler doesn’t think so. We asked her if they plan to mount a court challenge or push for legislation clarifying the matter, but the OCCAG plans to handle things from within. They’re mounting a candidate education effort, and pursuing individuals to run for five county offices in the next election. One of those is a commission seat. “We’re about educating, and educating them (candidates) as to what each client is about. Because we believe once people are educated, they will make the right choices.”

In the meantime, despite Idaho’s Open Meetings Law, it remains up to each county to determine just how open “open” is.

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