Twenty-three years after Kentucky's Attorney General rejected impermissible restrictions on recording public meetings in an open meetings decision that carries the force of law, the Indiana Public Access Counselor issued a welcomed, but long overdue, advisory opinion on this issue to WDRB reporter Sarah Sidery.

The Georgetown, Indiana, Town Council refused to permit Sidery to place a small wireless lavalier microphone on the top of the desk at which council members and their attorney were seated.

They argued that the Indiana Open Door Law – the equivalent of the Kentucky Open Meetings Law – did not obligate them to do so; that, given the size of the meeting room, amplification was unnecessary; and that it was incumbent on those wishing to record council meetings to ensure that their "equipment is sufficient."

Additionally, council members argued that placement of a microphone on the table at which they are seated inhibited attorney-client protected discussion with agency counsel.

The Indiana Public Access Counselor rejected each of these arguments based on language in Indiana's law requiring "all meetings of the governing bodies of public agencies to be open at all times to allow members of the public to observe and record the proceedings," concluding that the Indiana councilmembers' "interpretation of the Open Door Law is too narrow."

https://bloximages.newyork1.vip.townnews.com/wdrb.com/content/tncms/ass…

The Public Access Counselor remarked that the placement of the microphone on the desk occupied by council members was a "reasonable accommodation":

"[M]embers of the public who wish to record the council's proceedings with an innocuous device may place it near the council so long as long as the equipment is not disruptive to the public business at hand. This is especially true with a governing body that does not use microphones.

"This office has seen enough grainy video and listened to enough audio with ambient noise to know—regardless of room size—that recording from the audience does not always result in the highest quality of footage. Distorted quality is the often silent killer of public meeting audio recordings."

The Public Access Counselor also rejected the council members' argument that the placement of a recording device on the table they occupied would interfere with their ability to conduct privileged communications with their attorney.

"A public meeting," the Public Access Counselor observed, "is not the forum for confidential conferences with the governing body's attorney."

WDRB is a champion of Kentucky's open government laws, effectively employing both open meetings and open records to investigate and report the news. It does not shrink from legal challenges and has successfully defended the law in a number of Kentucky forums.

But its interstate legal challenge is a first (to my knowledge). And the outcome suggests the extent to which Kentucky has led the way on some open government issues.

In the mid-1990s, the Kentucky Attorney General issued an open records decision affirming the right of a private citizen to record public meetings under an open meetings statute mandating that "[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting."

The statute has since been amended to mandate that meeting room conditions include "adequate space, seating, and acoustics."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=42577

In 1996, the Attorney General surveyed the legal landscape in other jurisdictions, reaching back to caselaw from the mid-1960s that addressed a reporter's request to "use a noiseless and self-operated mechanical device, [an invention of recent years which] operates without any disturbance and is presently as much a part of [a reporter's] professional equipment as a pen, or pencil, and a sheet of paper used to be in trying to keep an accurate record of what takes place at public meetings."

https://ag.ky.gov/orom/1996/96OMD143.htm

The Kentucky Attorney General adopted the view that "[t]he principle of the freedom of the press may be invoked by anyone in this country; it is not necessary that such person be an actual newspaper reporter."

"As no one is harmed," the Attorney General concluded, "the use of a silent tape recorder operated exclusively by the person interested in making such a record must be permitted."

One year later, the Attorney General rejected the argument that agency members could engaged in privileged discussions with agency counsel in the course of a public meeting. General legal advice must be rendered in public, the Attorney General concluded, and "[t]he attorney-client privilege cannot be used to 'close' an otherwise public meeting unless attorney-client discussions relate directly to proposed or pending litigation."

https://ag.ky.gov/government/opinions/Opinions%20New/OAG97-001.htm

To the extent Kentucky's public agencies have deviated from these well-established principles in the intervening 23 years, they have done so at their peril. Kentucky's Open Meetings Law is, and has been, clear.

Thanks to WDRB, Indiana's Open Door Law now is as well.