North Carolina’s open meetings law allows any person to “photograph, film, tape-record, or otherwise reproduce any part of a meeting required to be open.” G.S.143-318.14(a) (emphasis added). What about meetings that are not required to be open? Does a person attending a closed session have a right to record it? If the public body decides to record the meeting, what is the status of that recording and how long must it be retained? This blog post addresses these and other related questions about recording closed sessions.
State law provides limited access to information about closed sessions.
The closed session statute, G.S. 143-318.11, does not address recordings of closed sessions. Since these meetings are not required to be open, the right to record a meeting under G.S. 143-318.14(a) does not apply. So neither the general public, nor anyone who attends the closed session, has a statutory to right to record it. The statutes do provide the general public with some information about closed sessions. The public body must make a motion in open session stating the legal basis upon which the closed session will be held. In addition, public bodies must create minutes and general accounts of closed sessions. G.S. 143-318.12(e). The public has access to these records unless their release will frustrate the purpose of the meeting. G.S. 143-318.11(c). The public may also learn about closed session discussions from individual board members or others who attended the session. As noted in my blog post here, the open meetings law does not prohibit disclosure of information from closed sessions, although some information is confidential under other statutes.
Public bodies may record closed sessions.
Some public bodies record closed sessions, even though this is not required. These recordings are typically created for use in preparing minutes and general accounts. (See my blog post here, on the difference between minutes and general accounts.) The municipal and county records retention schedules specifically provide that these recordings can be destroyed once the minutes are approved. If the unit retains the recordings, they will be subject to public access unless the content must be withheld to avoid frustrating the purpose of the closed session. (See my blog post here for more on how to apply that standard.)
Individual board member recordings.
Individual board members, or others who attend closed sessions, may wish to create a recording for their own use. There is no North Carolina statute or case that addresses the question of whether a board member has a right to record closed sessions. North Carolina city and county governing bodies have broad authority to adopt rules governing the conduct of their meetings, (G.S. 153A-41, 160A-71(c)), and they may wish to include in such rules a prohibition on recording close sessions. What is the justification for prohibiting recording, when members are free to take notes, and even talk about closed session meetings? A plausible rationale for a no-recording policy is that unlike comments and notes about what transpired, the release of a recording potentially discloses the entire meeting. As such, it completely eliminates the benefit afforded under the statute to engage in discussion and conduct the meeting away from the public’s view.
A board may also be concerned about whether an individual board member’s recording of a closed session is subject to public access under the public records law. As noted in David Lawrence’s book on public records, the questions of whether personal notes are public records has not been addressed in any North Carolina statute or case. Cases from other states have gone both ways on this question. See, Lawrence, at pages 19-21. Even if the board member asserts that the recording is for personal use only, a court may find that it is a record that was made “in connection with the transaction of public business” and is thus subject to public access under G.S. 132-1. (Non-public information contained in the recording could presumably be redacted prior to release.)
A board member may argue that state law (G.S. 15A-287) does not prohibit a secret recording of oral communications as long as one party to the conversation consents. Nothing in that statute, however, creates a right to record a conversation in any particular context.
Cases from other states have recognized local government boards’ authority to prohibit a member from recording closed sessions. For example, in Dean v. Guste, (414 So. 2d 862, (La. App.1982)) the court upheld a school board’s no-recording policy. The court noted that the Louisiana statute, like the North Carolina statute, specifically allowed recording of public meetings, and interpreted the legislature’s silence on the matter of recording closed sessions to mean that “each public body should have prerogative to allow or prohibit the use of tape recorders at closed meetings.” The case also holds that board members have no First Amendment right to record board meetings, and notes that they would have ample outlets to redress any violations of the law that might occur in the closed session (which was the announced purpose for creating the recording). See also, Zamora v. Edgewood Independent School Dist., 592 S.W.2d 649 (Texas App. 1980).
It’s not entirely clear how a board might enforce a policy prohibiting members from recording closed sessions. There is no specific authority to remove a board member from a meeting unless the member “willfully interrupts, disturbs, or disrupts” the meeting. Failure to comply with a request to leave in this situation constitutes a misdemeanor. See, G.S. 143-318.17. A federal case arising out the town of East Spencer held that police officers had probable cause to remove a board member after a disruption occurred over the board member’s refusal to comply with the board’s policy prohibiting taping of a closed session. King v. Jefferies, 402 F. Supp. 2d 624. (The case involves claims arising out of the forcible removal of the plaintiff, and did not rule on the legality of the prohibition on taping.)