Clarion News contends ban on recording was improper

By Rodney L. Sherman

CLARION NEWS Editor

CLARION

The CLARION NEWS contends a statement from Washington Township legal counsel Joe Keebler banning the recording of a Nov. 14 Washington Township Board of Supervisors' was improper.

Keebler told the gathering at the regularly scheduled meeting of the board the supervisors "do not consent" to the recording of the meeting.

In Pennsylvania, consent of all parties involved in a telephone or private conversation is required before that conversation can be recorded, however, consent is not required at a public meeting of elected government officials.

In an email correspondence, Melissa Melewsky, Media Law Counsel for the Pennsylvania NewsMedia Association, told the CLARION NEWS, "The township supervisors' consent (or lack thereof) to recording is irrelevant.

"The Sunshine Act guarantees the public's right to record public meetings, and that right is very clearly spelled out in section 711 of the Sunshine Act. The township supervisors cannot re-write state law."

Melewsky said the consent to record telephone conversations is an issue under the Wiretap Act, and it only applies where there is a reasonable expectation of privacy

"Simply put, the Wiretap Act does not apply during public meetings," explained Melewsky. "There is no expectation of privacy during a public meeting for two very obvious reasons: one, the meeting is held in public, and two, the Sunshine Act expressly allows public meetings to be recorded, hence any subjective expectation of privacy is not reasonable."

From the Pennsylvania Office of Open Records:

"The Sunshine Act allows meetings to be recorded with an audio recorder or a video recorder.

"It also allows agencies to issue reasonable rules concerning the use of recording devices in order to avoid any disruptions.

"However, such rules cannot be an attempt to prevent a member of the public from recording a meeting.

"The law does not require the recording of a public meeting to be announced in advance; however, it may be helpful for the chairperson in the opening statements to alert the public that the meeting might be recorded."

From the actual text of the Pennsylvania Sunshine Act Section 711. Use of equipment during meetings:

"A person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings.

"Nothing in this section shall prohibit the agency from adopting and enforcing reasonable rules for their use under section 710 (relating to rules and regulations for conduct of meetings)."

There could be penalties and fines

Under the state Sunshine Law, any actions taken at a meeting where it is determined the Sunshine Act was violated, the action is void.

A complaint could be filed by a township resident or other member of the public affected by the alleged violation of the Sunshine Act.

Again, from the text of state Sunshine Law:

Section 714. Penalty: "(a) Fines and Costs. - Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense and shall, upon conviction, be sentenced to pay:

"(1) For a first offense, the costs of prosecution plus a fine of at least $100 and, in the discretion of the sentencing authority, of not more than $1,000.

"(2) For a second or subsequent offense, the costs of prosecution plus a fine of at least $500 and, in the discretion of the sentencing authority, of not more than $2,000.

"(b) Payment. An agency shall not make a payment on behalf of or reimburse a member of an agency for a fine or cost resulting from the member's violation of this section.

Section 714.1. Attorney fees

"If the court determines that an agency willfully or with wanton disregard violated a provision of this chapter, in whole or in part, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs. If the court finds that the legal challenge was of a frivolous nature or was brought with no substantial justification, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs."