Q&A: Whispered public discussion, recording of public meeting

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From the Newton County Enterprise (Kentland):

Q: I have two questions. First, at town council meetings, often the council will talk quietly with each other during their regular monthly meeting. When they do this, it is difficult to hear what they are discussing. When they come to an agreement, one of them makes a motion. Shouldn’t their deliberations be discussed out loud, not whispered to each other?

Secondly, a reporter audio tapes county council and commissioners meetings. Recently, an employee of the county asked if the reporter if she still had a particular recording of a meeting, which she does. Who is responsible for that recording, her or the newspaper?

I told her she was under no obligation to share her recording with anyone since it is her machine. She wanted to give the copy to the paper so she wouldn’t be part of the debate over it. There is a dispute between the employee and a judge over a decision made at that meeting and has nothing to do with the newspaper or the reporter.

A: Yes, the council discussion should be audible for the citizens attending the meeting. I’d suggest you bring the problem to their attention. Hopefully, they’ll speak up at the next meeting. If they believe they can hold discussions that are inaudible, take the matter to the state public access counselor, who could advise them of the law.

The recording belongs to the newspaper or the reporter depending upon your policy and whose machinery is being used. There’s no obligation to provide it to the county employee at this point. If the dispute becomes a matter of litigation, then the paper or reporter might get a subpoena to produce the record. I doubt that such a subpoena could be successfully fought if it’s the only known recording of the meeting.

As to options, you could:

• Deny the employee’s request and wait to see if a lawsuit develops.

• Give the employee a copy, the argument being that it’s a recording of a public meeting so why keep it secret. Then you don’t create an enemy over a tape of a public meeting.

• Give copies to both the employee and the judge so neither side has a beef with the newspaper for withholding a recording of a public meeting.

Since litigation may be a possibility, I would suggest the newspaper keep the original copy of the record so no one later can accuse the newspaper of destroying it when you knew it might become an issue in a lawsuit. That wouldn’t make the newspaper look very good. Just put it in a file and keep it for two years, when the statute of limitations on the issue should have expired.

If we were talking about the recording of an interview with a source, or the recording of the impressions of the reporter on an issue, my advice would be completely different. But since we’re talking about a public meeting, the public relations boost to making the record available to both sides appeals to me.

Both sides then know what was said at the meeting, and they can determine their next action in accordance to what actually occurred.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.

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