66 Op. Att'y Gen. 318 (1977)
 
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OPINION NO. OAG 97-77,

Wisconsin Attorney General Opinions

25 November 1977

Dental Examiners, Board Of;
Open Meeting;
Tape Recordings;

A member of the Dentistry Examining Board has
a right to tape-record an open meeting of the
Board, providing he does so in a manner that
does not interfere with such meeting; and the
board cannot lawfully deny such right.

A board member does not have a right to
tape-record a closed meeting of the Board.

JOHN F. LUECK D.D.S.,
Secretary, Dentistry Examining Board

The Dentistry Examining Board has requested
my opinion on two questions:

1.   Does a member of the Dentistry Examining
     Board (hereinafter "the Board") have a
     right to record the oral proceedings
     constituting a meeting of such Board?

2.   If he has such a right, can it lawfully
     be denied him by board action, as, e.g.,
     by the adoption of a board
     administrative rule prohibiting a board
     member from recording a board meeting,
     or by a vote of the majority of the
     board members present at a meeting,
     prohibiting a recording thereof by any
     member?

In answering these questions, I will deal
with them as relating to a situation where
the Board is holding its meeting "in open
session," as required by Section 19.83,
Stats.

I will also consider the questions of
whether, in a meeting of the Board
convened "in closed session," pursuant to
Section 19.85(1), Stats., a board member
has the "right" described in Question No. 1,
and whether, if he has such right where the
board meeting is so convened, it may be
denied him by board action.

 
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It is my opinion that the board member has a
right to tape-record a meeting of the Board
held "in open session" (hereinafter called
"open meeting"); and it is my further opinion
that such right cannot be denied him unless
the process of tape recording used physically
interferes with the Board's deliberative
process.

While there are no helpful Wisconsin
decisions on these two questions there are
four cases from other jurisdictions which
address the issues raised in your questions.

Two of these cases provide strong
support for my opinion.

In Davidson v. Common Council of City of
White Plains, 40 Misc.2d 1053, 244 N.Y.S.2d
385 (1963), a New York lower court held that
the Common Council of White Plains had the
authority to regulate its own proceedings and
therefore was acting within the scope of its
legislative powers in forbidding the use of a
mechanical recording device at its public
meetings. In so holding, the court said:

     The fact that Legislative halls or
     courtrooms are open to the public does
     not give the public a vested right
     to televise, photograph or use recording
     devices. . . . If in the judgment of the
     legislative body the recording distracts
     from the true deliberative process of
     the body it is within their power to
     forbid the use of mechanical
     recording devices.

     244 N.Y.S.2d at p. 388.)

In Nevens v. City of Chino, 233 Cal.App.2d
775, 44 Cal.Rptr. 50 (1965), a reporter sued
for an injunction to prevent the City of
Chino and its city council from enforcing a
measure adopted by it which provided:

     That from and after this date (July 18,
     1961), no tape recorder or mechanical
     device for the purpose of obtaining
     tapes or recordings of Council
     proceedings be permitted in
     the Council chamber.

On appeal from dismissal of the suit,
it was held that such council measure
was "too arbitrary and capricious,
too restrictive and unreasonable.
It bars what clearly should be
permitted in making an accurate
record of what takes place at
such meetings.

44 Cal.Rptr. at p. 52.

In so holding, the court reasoned:

     . . . The plaintiff seeks permission to
     use a noiseless and self-operated
     mechanical device, as an aid to his
     profession as a newspaper reporter; this
     silent tape recorder, an invention of
     recent years, operates without any
     disturbance and, as alleged,is presently
     as much a part of plaintiff'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.
     . . .

 
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     . . The court can take judicial notice
     that there have been developed during
     recent years more than one variety of
     noiseless tape recorder. The action of
     the city council is too arbitrary and
     capricious, too restrictive and
     unreasonable.

     Wollam v. City of Palm Springs,
     59 Cal.2d 276,
     29 Cal.Rptr. 1,
     379 P.2d 481;

     Alves v. Justice Court, etc.,
     148 Cal.App.2d 419,
     306 P.2d 601;
     35 Cal. Jur.2d

     Municipal Corporations,
     Section 228, pp. 48-49.)

     It bars what clearly should be permitted
     in making an accurate record of what
     takes place at such meetings.

     Accuracy in reporting the transactions
     of a public governing body should never
     be penalized, particularly in a
     democracy, where truth is
     often said to be supreme. . .

     If a shorthand record of such a meeting
     is more accurate than long hand notes,
     then the use of shorthand is to be
     approved, Wrather-Alvarez Broadcasting
     v. Hewicker, 147 Cal.App.2d 509, 514,
     305 P.2d 236); and if the making of a
     tape record is a still better method of
     memorializing the acts of a public body
     it should be encouraged.

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

     44 Cal.Rptr. at pp. 51, 52.

It should be observed that Nevens dealt with
open or public meetings of a city council,
as did Davidson; but Nevens makes
no mention at all of Davidson.

Sigma Delta Chi v. Speaker, Maryland House of
Del., 270 Md. 1, 310 A.2d 156 (1973),
involved a challenge to rules of the Maryland
Legislature preventing attendance at the
sessions of its respective houses by news
reporters or others in the possession of tape
recording devices. In rejecting such
challenge raised by news reporters and a
national journalism fraternity, the Court of
Appeals of Maryland held that such rules did
not constitute a restraint on reporters'
rights to freedom of the press and an
abridgement of their first amendment rights,
and that such rules did not violate due
process by interfering with the right of
reporters to pursue their profession.

In so holding,
the court said:

 
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     Appellants base their argument
     principally on the case of Nevens v.
     City of Chino, 233 Cal.App.2d 775,
     44 Cal.Rptr. 50 (1965), where a news
     reporter sought to enjoin a city council
     from enforcing a measure that
     provided:

          That from and after this date, no
          tape recorder or mechanical device
          for the purpose of obtaining tapes
          or recordings of Council
          proceedings be permitted in
          the Council chamber,

          44 Cal. Rptr. at 50. . . .

     The California court held that the
     action of the city council was "too
     arbitrary and capricious, too
     restrictive and    unreasonable,"

     44 Cal.Rptr. 52.

     In so holding, it reasoned that since
     tape recorders are "silent and
     unobtrusive," their exclusion
     unreasonably deprived reporters
     "of the means to make an accurate
     record of what transpires in a
     public meeting."

     Id. at 52. The court then conjectured:

          "Suppose, for example,
          that the Chino City
          Council had attempted to
          prohibit the use of pen,
          or pencil and paper, at
          the session held by
          them."

          Id.  at 52.

     This statement is clearly inapposite
     here. While the removal of pen and paper
     might frustrate all effective
     communication, the prohibition against
     tape recorders is a mere inconvenience.

     Therefore, we think the reasoning of the
     California decision is unsound,
     and we decline to follow it.

     Cf. Davidson v. Common Council of City
     of White Plains, 40 Misc.2d 1053, 244
     N.Y.S.2d 385 (Sup.Ct.1963).

     310 A.2d at p. 160.)

The most recent case involving the tape
recording issue is Sudol v. Borough of North
Arlington, 135 N.J. Super. 149, 348 A.2d 216
(1975). In Sudol, a taxpayer recorded a
meeting of the council of the defendant
Borough. After the meeting, the council
discovered that she had recorded it and
would not let her leave until she had
surrendered the tape.

The council had no rule or ordinance
prohibiting tape recordings, and it
was stipulated that the Borough had
permitted and would permit note-taking,
including verbatim shorthand.

The court in Sudol held that the taxpayer was
"entitled to record the proceedings of the
public meetings of North Arlington for the
reasons and logic expressed in Chino
[Nevens]." 348 A.2d, p. 219.)

 
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It found Davidson and Sigma Delta Chi
unpersuasive.

It pointed out that Davidson had held "that
a legislative body has the power to forbid
the use of a mechanical recording device if,
in the body's judgment, the recording of
legislative process distracts from the true
deliberative process of the body," but that
"The testimony in the instant case clearly
establishes beyond any question that Mrs.
Sudol's recording device in no way
disturbed anybody. As a matter of fact, no
one even knew it was being done until after
the meeting was over."

348 A.2d at p. 217.

As for Sigma Delta Chi, the Sudol court
viewed it as inapplicable because, "The
North Arlington council had no ordinance
or resolution which in any way restricted
this plaintiff from recording the
proceedings of the public meeting."

Ibid. at p. 218.

Had North Arlington, however, possessed an
ordinance or resolution of such type, it is
plain that it would have been highly suspect
in the eyes of the court deciding Sudol, in
view of its explicit adoption of the Nevens
rationale in reaching its decision. Under
such rationale, any prohibition of a silent
tape recording of a public meeting is
invalid, whether or not it is in the
form of a public body's rule,
resolution, or ordinance.

I find the rationale of Nevens convincing,
and believe that Wisconsin courts would
follow it. Nevens recognizes the right of
individuals, whether news reporters or not,
to tape-record public or open meetings of
governmental bodies so long as such tape
recording does not create a disturbance
which will interfere with the conduct
of the meeting, and with the right
of others present to listen.

While Nevens does not specifically refer to
such right as a "right," it recognizes such a
right when it says, "As no one is harmed, the
use of a silent tape recorder operated
exclusively by the person interested in
making such a record must be permitted"
(emphasis supplied; 44 Cal.Rptr. p. 52); and
Nevens also recognizes a right to record a
public meeting with a silent tape recorder
when it cites, in support of its holding, the
"general rule approved in Wrather-Alvarez
Broadcasting, Inc. v. Hewicker,
147 Cal.App.2d 509, 514, 305 P.2d 236, 239,
that, "We conclude that petitioner or his
assistant is authorized at any public hearing
in the court where he is rightfully in
attendance to take such notes as he may
desire concerning the proceedings in any form
selected by him so long as it does not
interfere with the orderly conduct of the
proceedings." ibid.

 
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Sudol, holding that the taxpayer involved,
under the rationale of Nevens, was "entitled"
to tape-record the public meeting, correctly
viewed Nevens as declaring the existence of a
right.  The California "open meetings" law
apparently assisted the court in reaching its
decision in Nevens. The California "open
meetings" law requires "public hearings by
city councils and other similar governmental
bodies within the state." 44 Cal.Rptr. p. 51.

A very natural concomitant of the "right to
know" conferred by and recognized in an "open
meetings" law is the right, recognized in
Nevens, to make "an accurate record of what
takes place" at public meetings, by any
means, including the tape recorder not
physically disruptive of the meeting.

The "right to know" also exists in Wisconsin
under our own "open meetings" law, Sections
19.81-19.98, Stats. Thus, I view Nevens more
in point in discussing Wisconsin law,
although I would find such case persuasive
even if Wisconsin did not have its "open
meetings" law. (Sudol, it should be noted,
in finding that Nevens "is most closely in
point and its logic persuasive" pointed out
the fact that New Jersey, in common with
California, had "right-to-know" provisions
(348 A.2d p. 218); and it is obvious that the
Sudol court found Nevens easier to follow
because New Jersey, as well as California,
had such statutes.)

As I find Nevens and Sudol convincing, I find
Davidson and Sigma Delta Chi unconvincing.
Davidson would permit a public body to
prohibit a tape recording of its public or
open meeting merely because a member or
members of such body, no matter how silent
and orderly the operation of the
tape-recording process, would feel it
"distracts from [the] true deliberative
process of [the] body," with such feeling
arising out of a dislike for or uneasiness
with the idea of having one's words, or the
words of one's colleagues, or both,
accurately tape-recorded, for
whatever the reason.

Such a subjective reason for denying a right
to tape-record a public or open meeting
in a physically nondisruptive manner is,
in my judgment, not a good or sound
reason for the denial of such right.

I find Sigma Delta Chi particularly
unconvincing because of its unrealistic
appraisal of the prohibition of tape
recorders as "a mere inconvenience."

310 A.2d at p. 160.

The Maryland court apparently came to such
conclusion with the thought that so long as
reporters had "pen and paper," the
prohibition against tape recorders
produced no more than "a mere
inconvenience."

See 310 A.2d at p. 160.

Such a prohibition is much more than that,
and must be viewed as constituting a real
and substantial infringement upon the right
to obtain a complete and accurate record of a
public meeting by any means not physically
disruptive of it, including the
tape-recording process currently most
suitable and likely to obtain such record.

 
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I would read Wisconsin's "open meetings" law,
absent any support from decisions such as
Nevens and Sudol, to allow for recording open
meetings. Section 19.81, Stats., reads in
part:

19.81(1)  In recognition of the fact that a
          representative government of the
          American type is dependent upon an
          informed electorate, it is declared
          to be the policy of this state that
          the public is entitled to the
          fullest and most complete
          information regarding the
          affairs of government as is
          compatible with the
          conduct of governmental business.

19.81(2)  To implement and ensure the public
          policy herein expressed, all
          meetings of all state and local
          governmental bodies shall be
          publicly held in places reasonably
          accessible to members of the public
          and shall be open to all citizens
          at all times unless otherwise
          expressly provided by law.
 

This language, and the provision of Section
19.83, Stats., that "Every meeting of a
governmental body . . . shall be held in open
session," though qualified by the "closed
session" exemptions of Section 19.85, Stats.,
make it plain that any member of the public
has a right to attend an open meeting of a
governmental body in Wisconsin, as such body
is defined in Section 19.82, Stats.

I believe that it was well within the
intendment of the Legislature, in enacting
our "open meetings" law, that a member of the
public has not only a right to attend, but
also a concomitant right to take notes at
such meeting, or to do other nondisruptive
acts, in order to obtain and preserve "the
fullest and most complete information" of
what occurred.

It seems clear to me that a "right to record
completely and accurately," if not within
the letter of the "open meetings" law of
Wisconsin, is clearly within its spirit.

Few persons, if any, have a
power of total recall.

In order to obtain a complete and accurate
record of a public meeting of any length
or consequence, it may well be necessary
to mechanically record what goes
on at such meeting.

 
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It is my opinion, based on Nevens, Sudol
and the Wisconsin open meetings law that
any member of the public has the right
to record an open or public meeting of
a governmental body by use of a tape
recorder so long as its use is
not physically disruptive
of the meeting.

By the same reasoning, a member of such
governmental body possesses such right, since
his interest in a complete and accurate
record of an open meeting of such body is
presumably greater than that of the average
person attendant at such meeting, and at
least as great as that of any person
attending who possesses a special and logical
interest in the accuracy and completeness of
such record, or any part thereof.

A member of the Dentistry Examining Board has
such right.

While it is my opinion that a Dentistry
Examining Board member has a right to
tape-record an open meeting of the Board
in a nondisruptive fashion, I do not believe
he has such right as to a meeting of the
Board convened "in closed session" under
Section 19.85(1), Stats.

The Legislature, in conferring on
governmental bodies the power to hold closed
meetings for certain carefully defined
purposes, clearly intended that no one should
have the right to report a closed meeting
under circumstances that might mean that its
private and secret nature could be violated.

If a board member, or anyone else lawfully
attending a closed meeting of the Dentistry
Examining Board, could tape-record a closed
meeting and retain the tape thereof in his
own possession and for his own uses, there
would always exist the possibility, and
perhaps in some situations even a probability
that the contents of such tape would be
disclosed to the public, by design or by
accident. Such a disclosure defeats the
purpose of Section 19.85(1), Stats.

It may be that a governmental body will
believe it desirable to record its closed
meetings, but it should then arrange to keep
the records thereof under security to prevent
their improper disclosure.

The tape recording could be made by the Board
itself, perhaps with its administrative
secretary handling the task. The Board might
permit one of its members to use his tape
recorder to record a closed meeting, but the
record produced should go into the Board's
custody, rather than the custody of such
member.

Under such an arrangement, of course, a board
member would not be tape-recording the closed
meeting as a matter of right.

BCL:JHM


 
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