June 19, 1996

In re: Bessie Elliott/North Marshall Water District


This matter comes to the Attorney General as an appeal by Bessie Elliott in connection with her complaint against the North Marshall Water District.

In a letter to Roy C. Brien, Chairman of the Board of the Water District, dated April 29, 1996, and sent by certified mail, Miss Elliott asked for permission to tape record the regular monthly meeting of the board and all special meetings of the board.

This office received a letter from Miss Elliott on June 5, 1996, in which she stated in part that she had received no written communication from the water district relative to her request. She said in part that she had been informed by telephone by Mr. Brien that the water district had advised her that she could not tape the meetings in question.

In a letter to this office from the attorney for the water district, received June 13, 1996, it was stated in part that the water district denied Miss Elliott's request because of the decision rendered in OAG 85-74. That opinion concluded in part that a nonmedia person could not photograph or tape record fiscal court proceedings without first obtaining the permission of the fiscal court. The opinion relied upon the provisions of KRS 61.840.

KRS 61.840, which has been in effect since 1974, provides as follows:

No 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 water district, no doubt, relied in good faith upon the holding in OAG 85-74 to deny permission to tape record its regular and special meeting. Miss Elliott's appeal, however, has caused us to reexamine the issue of the public's right to tape record a meeting of a public body. Not only was the Open Meetings Law significantly amended in 1992, but this office has examined materials and decisions that were either not available or not considered when the 1985 opinion was prepared.

The 1992 amendments to the Open Meetings Law included a “legislative statement of policy,” codified as KRS 61.800, clearly indicating that meetings of public bodies are intended to be open to the public with only a few narrowly construed exceptions:

The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be construed in secret and the exceptions provided for in KRS 61.810 or otherwise provided for by law shall be strictly construed.

In 56 AmJur2d Municipal Corporations, Etc., § 162, the following appears:

A person is authorized at any public hearing 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 this does not interfere with the orderly conduct of the proceedings. Thus, it has been held that rules and regulations of a city council prohibiting the use of any tape recorder or like device during a public meeting by any citizen for the purpose of recording such meeting are too arbitrary, capricious, restrictive, and unreasonable.

In 4 McQuillin Mun. Corp. (3rd Ed.), § 13.07.02, it is stated in part that citizens may be permitted to record council meetings when using silent recording devices that do not disturb the meeting. “Accordingly, a city council measure providing that no tape recorder or mechanical device for the purpose of obtaining tapes or recordings of council proceedings shall be permitted in the council chamber may be too arbitrary and capricious, and too restrictive and unreasonable.”

The court, in Wrather-Alvarez Broadcasting v. Hewicker, 305 P.2d 236, 239 (Cal. 1957), said in part:

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 before the court or its officers.

In Nevens v. City of Chino, 233 Cal.App.2d 775, 44 Cal. Rptr. 50, 51 (1965), the court said in part:

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. The 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.

The court in the City of Chino case concluded at page 52 of its opinion that, “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.”

In Sudol v. Borough of North Arlington, 137 N.J.Super 149, 348 A.2d 216, 219 (1975), the court said:

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. Governmental measures based upon police power should always be well defined and reasonably exercised. And here reason is down-graded. 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, Inc. 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.

The court, in Maurice River Bd. of Ed. v. Maurice River Tchrs., 455A2d 563 (N.J. Super. Ch. 1982), dealt with the videotaping of a public meeting which was also tape-recorded. The court noted that there are still persons who tend to resist tape-recording but, “[I]n the last analysis it is the frankness and openness of conduct of those entrusted with the administration of government which is--and remains--the bedrock of our democratic system.” At page 564 of its opinion the court said:

This court holds that a member of the public has the right to videotape a public meeting, subject to certain restrictions which this court will impose herein, and that the public body involved has no power to arbitrarily forbid such action. This right is bottomed not upon the statute but upon common law commitment to (paraphrasing Woodrow Wilson) “open government openly arrived at.” Indoctrinated by centuries of the bitter, costly and painful process of liberation from the yoke of autocratic government, the founders of this country understood clearly the necessity of free and open discussion. The excesses of the Star Chamber were not forgotten by our forebearers, nor are they unknown to the present generation.

It is, therefore, the decision of the Attorney General that a regulation, rule, or policy of a public body which uniformly prohibits the tape recording of a public meeting is arbitrary, capricious, restrictive, and unreasonable and a person should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting. To the extent that OAG 85-74 conflicts with the decision and principles set forth in this decision, the earlier opinion is modified.

A party aggrieved by this decision may appeal it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.



Thomas R. Emerson

Assistant Attorney General


Copies of this decision

have been submitted to:

Bessie Elliott

3981 U.S. Highway 68W

Benton, Kentucky 42025

Donald E. Thomas, Esq.

Attorney for North Marshall

Water District

P.O. Box 850

Benton, Kentucky 42025