Proposed cell phone ban in courthouse raises Open Door Law concerns

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Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com.

The following questions were submitted by The Star (Auburn) and Dekalb County Attorney:

Proposed cell phone ban in courthouse raises Open Door Law concerns

Q: Our county is preparing to install a security system at our courthouse and intends to ban cell phones and other electronic devices except for employees. Our courthouse is the site for public meetings of government agencies, as well as court hearings. What is the law involving electronic devices at public meetings? Do I have a right to bring these devices, or am I dependent on the goodwill of county officials to have this privilege? 

A: I would suggest KPC Media have a conversation with the county commissioners or judges – whoever is considering a ban on cellphones and other electronic devices.  That’s because the Open Door Law gives the public the right to observe and “record” public meetings. [See I.C. 5-14-1.5-3.]  Based on that statute, the Indiana Supreme Court has ruled that governing bodies may not ban the use of cameras and tape recorders at public meetings. [See Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989)] 

I believe to avoid litigation that they would probably lose that they determine how to accommodate the public, which chooses to attend a public meeting in the courthouse. Courtrooms can continue to ban such devices, although the Supreme Court has given a green light to reporters using laptops, etc., in the courtroom as long as they don’t use them as recorders or cameras, if the judge is OK with it. 

Compromise needed between courtroom ban on broadcasting and public’s right to know

Q: Thanks for the correspondence from Steve Key.  I completely agree about the ability to record.  That said, neither the case cited nor the Open Door Law state that a person may use any recording device of their choosing, and I believe the Sheriff believes cell phones may pose a danger more serious than an interruption of the hearing by a phone ringing.  Otherwise, cell phones would be permitted in most public buildings that now prohibit cell phones.  I honestly am technology-challenged enough to not know what those dangers may be. 

 It strikes me that a reasonable accommodation would permit some type of recording device to be used that does not have whatever dangers the cell phone may have.  In the Berry case cited by Mr. Key, the reporter sought the use of a small tape recorder.  It did not say that small recorder was in fact a cell phone with recording features.  

 I would be interested in Mr. Key’s opinion on allowing an actual recording device that performed only that function and was not part of a device (like a cell phone) that was usable for other things.  I would also be interested in his opinion on whether someone should be entitled to use a recording device if there was an official recording of the hearing that could be made available to the public.  That said, I believe a stronger case may be made for recording a matter even though there is an official recording (to insure nothing was deleted from the official recording). 

A: You are correct that Berry doesn’t address the form of “recording” as the case predates the wide-spread use of cell phones as cameras, video-recorders, social media outlet and the occasional actual phone call. I can’t say with any certainty, but my feeling is that most cell phone bans are based on their ability to capture images, not as a potential weapon. The ban prevents broadcast or photos in courtrooms, the capturing of trademark protected machinery in factories, capturing of images of how security cameras are set up, etc. Those are all different situations than allowing cell phones to be used to record public meetings. 

Does the state want to adopt a public policy that requires a citizen to purchase special equipment to exert their right to record a public meeting when almost everyone already possesses a cell phone that can perform that function? You’re also correct that HSPA’s view would be that the legislature contemplated the ability of citizens to record the meetings so they weren’t dependent upon government to provide an unedited or altered copy of the proceeding, which the citizen would have to pay a price to obtain that copy. 

 This a very interesting policy discussion. I understand how government agencies have been trying to find the line since 9/11 between security and continued public access. Barriers to stop vehicles filled with explosives from ramming buildings to metal detecting screeners and hand-held detector wands are now a common expectation when one goes to the Statehouse or many county courthouses. And we all know the routine when we are going to board an airplane. 

 The Statehouse would remain a more likely target than specific courthouses, but it hasn’t instituted any cell phone ban. This raises the question as to the level of threat posed by cell phones. I haven’t heard what the sheriff’s concern is and whether this was recommended by Indiana’s Department of Homeland Security or some other entity. I plan to reach out to the state DHS to see what recommendation or level of concern they have with cell phones. 

 (Here’s follow up) 

I had a phone conversation with Bryan Langley, executive director of the Indiana Department of Homeland Security. My understanding is that the state DHS has sent out no recommendations to ban cell phones from public buildings. So unless Doug Carter, Superintendent of the Indiana State Police, has sent out such a recommendation, which would surprise me, it raises the question as to why the sheriff believes such a ban is necessary. 

If there isn’t a safety issue concern raised by DHS or ISP, then what would be the basis for such a ban. I can understand concern by the courts that people are prohibited from taking photos or video through courtroom doors, but I would think a compromise could be found to preserve the Supreme Court ban on broadcasting of trial court action without infringing on the public’s right to record public meetings of the county commissioners, county council, etc.

 

Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com.