Audio and Video Recording Public Officials

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Memorandum of Law - Documenting:

Interactions with Government Officials, Government Business in Any Public Forum and

the Acts and Conduct of Public Officials Engaged in Their Official Duties

A person involved with any official government business, including child abuse or neglect

investigation and/or court case, has the right to document all interactions which occur between that

person and any government official, as well as any other activities conducted by government

personnel during the course of their official duties. Furthermore, they may also document all

interactions with persons who will be providing reports, testimony or recommendations about the

individual or his or her children either to the government agency or the court. This documentation

can be accomplished by audio recording, video recording, having witnesses present, note-taking

and drafting and sending follow-up letters. Since these interactions and government activities will

form the basis of reports and recommendations concerning the person and his or her family, it

would be unreasonable to prohibit any documentation efforts by an affected person, their advocates

and court watchers.

Any video or audio recording which is done openly, with the recording device in plain view,

whether all parties have been advised that recording is taking place or not, is lawful and does not

invade privacy. If a person, upon seeing the recording device does not wish to be recorded, their

recourse is to leave the area and/or not participate in any conversation. Various states allow that

only one party to the conversation give consent for recording, and in these circumstances,

surreptitious audio recording is permitted. In most jurisdictions, video recording (no audio

included) of anything visible to the general public is permitted without permission.

PRIVACY

Documentation by video or audio recording in public is no more a violation of anyone’s privacy

than is writing down exactly what that person was doing and/or saying, with the singular exception

that a video or audio recording is going to be much more accurate and unbiased than any written

account.

On the public street, or in any other public place, the plaintiff has no right to be

alone, and it is no invasion of privacy to do no more than follow him about. Neither

is it such an invasion to take his photograph in such a place, since this amounts to

nothing more than making a record, not differing essentially from a full written

description of a public sight which anyone present would be free to see. Daily

Times Democrat v. Graham , 162 So. 2d 474 (Ala, 1964).

This principle also extends to recording and photo documentation which occurs in by a resident in

their own home. A government official conducting official business inside an individual’s

residence or property has no expectation of privacy and therefore, can make no objection to any

form of documentation of their official acts. Indeed, such objections or refusals to perform their

duties make their motives and conduct highly suspect.

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Neither is discreet or unobtrusive recording generally disruptive to any official proceeding. Any

public official who has nothing to hide should have no objection to having his or her official acts

documented in any fashion.

Expectation of PrivacyWhat a person knowingly exposes to public, even in home or office, is not protected by Art.II sec.

7, Colo. Const. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972). People v. BcGahey, 179

Colo. 401, 500 P.2d 977 (1972).

A person does not have to seek the permission of a person in a public place prior to filming or

recording them because the courts have consistently ruled that there is no expectation of privacy in

a public place. “Where an individual’s picture is taken on the public streets, or in a public place

such as a courtroom or a sporting event, the courts have refused to consider the taking as an

invasion of privacy.” Phillip e. Hassman, Annotation, Taking Unauthorized Photographs as

Invasion of Privacy, 86 A.L.R. 3d 374, 375 (1978) (emphasis added).

Capturing a conversation in a public area where the speakers had no reasonable expectation of

privacy is not eavesdropping. Hornberger v. ABC, 799 A.2d 556 (broadcaster’s use of hidden

camera to surreptitiously record police stop and search of car did not constitute eavesdropping

because police officer making a stop on a busy public highway had no reasonable expectation of

privacy. If communication by the speaker is not intended to be private, there is no eavesdropping.

Privacy is determined by a) the location of the communication b) the status of the persons

involved, whether they are private individuals or public officials.

There is no invasion of privacy liability for observing a person or even taking his photograph while

is walking on the public highway, since he is not then in seclusion, and his appearance is public

and open to the public eye. Comment (c) to section 652B of the Restatement (Second) of Torts

(1976).

As applied:

No invasion of privacy where photograph of couple was taken without their consent at Miami

Airport, a place open to the general public. Fogel v. Forbes, Inc. 500 F. Supp. 1081 (E.D. pa.

1980).

No invasion of privacy where filming of interior of pharmacy recorded nothing more than what any

passerby would have seen. Mark v. King Broadcasting Co., 618 P.2d 512 (Wash. 1980).

No invasion of privacy for video surveillance of individual’s commuting patterns. Munson v.

Milwaukee Bd. Of School Directors, 969 F.2d 266 (7 Cir. 1992).th

GOVERNMENT BUSINESSThe business of the state is open for public scrutiny under the Colorado Open Records Act, C.R.S.

24-72-201 & 202.

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Court hearings are open to the public with very few instances where a court hearing would be

closed, and then, only for good cause, and only when supported by evidence. C.R.S. 27-72-301.

Court hearings are required to create a verbatim record of proceedings C.R.S. 13-6-309. Likewise,

most court documents for cases that are open to the public are also available to the public under the

Open Records Act.

Legislative sessions, executive and administrative and municipal agencies and board meetings are

similarly open to the public under the Sunshine Law C.R.S. 24-6-401 & 402, and are frequently

documented with official audio or video recordings of the proceedings. This has never precluded

the right of anyone attending to create their own visual or audio recording.

Of course, the Fourth Amendment does not protect subjective expectations of privacy that are

unreasonable or otherwise “illegitimate.” See, e. g., Hudson v. Palmer, 468 U.S. 517 (1984);

Rawlings v. Kentucky, 448 U.S. 98 (1980). To receive the protection of the Fourth Amendment, an

expectation of privacy must be one that society is “prepared to recognize as legitimate.” Therefore,

any official activity by any government employee or government official who is elected or

appointed is not protected under the Fourth Amendment or privacy considerations.

The law applicable to the question, “which unequivocally and repeatedly has stated that when one

becomes identified with an occurrence of public or general interest, he emerges from his seclusion

and it is not an invasion of his “right of privacy” to publish his photograph or to otherwise give

publicity to his connection with that event. The law does not recognize a right of privacy in

connection with that which is inherently a public matter. Numerous cases are available on the

subject and I have found no disagreement as to the law.” Berg v. Minneapolis Star & Tribune Co.,

79 Fed. Sup. 957. Metter v. Los Angeles Examiner, 35 Cal. App. (2d) 304, 95 Pac. (2d) 491;

Jacova v. So. Radio & Television; Co., (Fla.) 83 So. (2d) 34. Jones v. Herald Post Company, 230

Ky. 227, 18 S.W. (2d) 972; Humiston v. Universal Film Mfg. Co., 178 N.Y.S. 752. Smith v.

Doss, 251 Ala. 250, 37 So. (2d) 118. Elmhurst v. Pearson, 153 F. (2d) 467. Gautier v.

Pro-Football, Inc., 304 N.Y. 354, 107 N.E. (2d) 485. Ettore v. Philco Television Broadcasting

Corp., (D.C. Pa. 1954) 126 F. Supp. 143.” Quoting In re Hearings Concerning Canon 35 of

Canons of Judicial Ethics, 296 P.2d 465, 132 Colo. 591 (Colo. 02/27/1956)

Public OfficialsA person, acting in his or her official capacity as a representative of any branch of the government,

has no expectation of privacy in the performance of their duties. Their very status as a public

official, be it caseworker, judge, court appointed Guardian ad litem (who, as a quasi-judicial

officer, is conducting the business of the court in the name of the court), or other public official, is

tantamount to an implied consent to inform the general public by all legitimate means regarding her

or her activities in the discharge of his or her public duties.

What is a public official?“It is our opinion that the [officer] is within the ‘public official’ classification. . . . his duties are

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peculiarly ‘governmental’ in character and highly charged with the public interest....” Coursey v.

Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837 (1968)

[To] qualify as public officials under the test of Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15

L. Ed. 2d 597 (1966), they must “have or appear to the public to have, substantial responsibility for

or control over the conduct of governmental affairs,” id. at 85, 86 S. Ct. at 676, and their position

“has such apparent importance that the public has an independent interest in the qualifications and

performance of the person who holds it, beyond the general public interest in the qualifications

and performance of all government employees....” Id. at 86, 86 S. Ct. at 676. He possesses both the

authority and the ability to exercise force. Emphasis added.

Misuse of [official] authority can result in significant deprivation of constitutional rights and

personal freedoms, not to mention bodily injury and financial loss. That there is a strong public

interest in ensuring open discussion and criticism of [a public official’s] qualifications and job

performance are integral in determining whether or not a person is a public official. Gray v.

Udevitz, 656 F.2d 588 (10th Cir. 08/07/1981). Emphasis added.

As applied to:

Police: Cassidy V. American Broadcasting Companies, Inc. 377 N.E.2d 126 (Ill. App. Ct. 1978);

State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992); “By accepting his public position [the police

chief] has, to a large extent, relinquished his right to keep confidential activities directly relating to

his employment as a public law enforcement official.” State ex rel. Bilder v. Township of

Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983); “. . .misuse of authority can result in

significant deprivation of constitutional rights and freedoms, not to mention bodily injury and

financial loss. . .The public therefore has a valid interest in the [officer’s] qualifications and on-the-

job behavior. . .[I]n light of a[n officer’s] empowerment to substantially affect the lives of the

general public, [his] position invites public scrutiny. . .” Tomkiewicz v. Detroit News, 635 N.W.2d

36 (Mich. 2001) quoting Gray v. Udevitz, 656 F.2d 588 (10 Cir. 1981)th

School principal: Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)

Deputy sheriff: St. Amant v. Thompson, 390 U.S. 727, 730 & n.2 (1968)

FBI agent: Price v. Viking Penguin, Inc., 881 F.2d 1426, 1431 (8th Cir. 1989)

NO EXCEPTION FOR COURTSBy definition, a judge and any officer of the court is a public official subject to the same

scrutiny as any other public official.

The judicial canon referring to expanded media coverage in courtrooms is not relevant to

circumstances wherein a member of the public wishes to create their own recording of court

proceedings for their own purposes.

At the time this canon was devised for media coverage, audio and video recording devices

were bulky and cumbersome and private ownership of these devices was rare. By way of

background:

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“Over the past 50 years, some criminal cases characterized as ‘sensational’ have

been subjected to extensive coverage by news media, sometimes seriously

interfering with the conduct of the proceedings and creating a setting wholly

inappropriate for the administration of justice. Judges, lawyers, and others soon

became concerned, and in 1937, after study, the American Bar Association House

of Delegates adopted Judicial Canon 35, declaring that all photographic and

broadcast coverage of courtroom proceedings should be prohibited.

In 1952, the House of Delegates amended Canon 35 to proscribe television

coverage as well. 77 A. B. A. Rep. 610-611 (1952). The Canon's proscription was

reaffirmed in 1972 when the Code of Judicial Conduct replaced the Canons of

Judicial Ethics and Canon 3A (7) superseded Canon 35. E. Thode, s to Code of

Judicial Conduct 56-59 (1973). Cf. Fed. Rule Crim. Proc. 53. A majority of the

states, including Florida, adopted the substance of the ABA provision and its

amendments. In Florida, the rule was embodied in Canon 3A (7) of the Florida

Code of Judicial In February 1978, the American Bar Association Committee on

Fair Trial-Free Press proposed revised standards. These included a provision

permitting courtroom coverage by the electronic media under conditions to be

established by local rule and under the control of the trial judge, but only if such

coverage was carried out unobtrusively and without affecting the conduct of the

trial.

The revision was endorsed by the ABA's Standing Committee on Standards

for Criminal Justice and by its Committee on Criminal Justice and the Media, but it

was rejected by the House of Delegates on February 12, 1979. 65 A. B. A. J. 304

(1979).

In 1978, based upon its own study of the matter, the Conference of State

Chief Justices, by a vote of 44 to 1, approved a resolution to allow the highest court

of each state to promulgate standards and guidelines regulating radio, television,

and other photographic coverage of court proceedings.” Quoting Chandler et Al. v.

Florida, 1981.SCT.40466; 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740, 49

U.S.L.W. 4141 (01/26/81).

Recording equipment took up significant room within a courtroom and required a

professional to operate them. Changing a tape or film was potentially disruptive to the court

process due to the complicated processes involved. Hence, the need to control media equipment

access was predicated upon the need to protect the decorum of court proceedings, not upon any

claim that the information disclosed during those proceedings could not be collected, utilized or

disseminated.

However, it is significant to note that the provisions governing expanded media coverage

only apply to the media. There are no provisions which apply to the general public regarding

verbatim documentation of court proceedings.

Consequently, each judge adopts his or her own rules governing the use of unobtrusive or

discreet image capturing and audio recording devices in their own courtrooms by the general

public. This has resulted in great inconsistency from one courtroom to the next governing the use

of discreet audio or video capture equipment.

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NO SPECIAL PRIVILEGE FOR MEDIAThe press is not entitled to treatment different in kind than the treatment any other member of the

public may be subjected to. Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice Stewart

concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817

(1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access cases, whatever

they may precisely turn out to mean, recognize a right of access of both public and press to trials.

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior

Court, 457 U.S. 596 (1982).

THE PUBLIC NEED FOR ACCURATE VERBATIM RECORDS OUTWEIGHS ANYGOVERNMENT INTEREST IN SUPPRESSING THE PUBLIC’S ABILITY TODISCREETLY AND ACCURATELY DOCUMENT THE BUSINESS OF THE COURT

To allow media to document court cases by recording but prohibit the public from

recording bestows unwarranted special privileges to the media. If the public interest is greater than

the media interest, there should be no obstruction to allowing the public to use the same methods

and tools to document official acts and conduct as the media has been granted.

Neither the courts nor any other branch of the government can be allowed to affect the

content or tenor of the dissemination of information obtained about their official conduct by

choreographing which news organizations or members of the public have first hand access to

relevant information.

“A person singled out for exclusion from the courtroom, who is thereby barred

from first-hand knowledge of what is happening there, moreover, is placed at an

extraordinary disadvantage in his or her attempt to compete in the ‘marketplace of

ideas’ about the conduct of judges and the judicial system.” Cf. Anderson v.

Cryovac, Inc., 805 F. 2d 1, 9 (1st Cir. 1986)

There is a growing grassroots activism called “court watching.” Court watching is a form of

public participation protected by the first amendment. The court watch movement has been born

out of the public’s concerns over the way business is conducted in the courts of this country. It is

based on the growing awareness of judicial and prosecutorial abuses, unfettered violations of rights

and laws, bias, corruption, cronyism and the use of the people’s courts to implement personal

agendas or to increase the personal fortunes of certain unethical officers of the courts.

The mission of these watchdog groups and individuals is to inject credible and meaningful

public scrutiny into our courts, and to document and expose court-related abuses in an effort to

secure sanctions and convictions against violators. Their sole desire is to insure that our courts are

not pro-forma arenas catering to special interests, bias or power, or used to exploit the helpless, but

are equally accessible and fair to all and operating fully within constitutional restraints. However,

time has proven that their efforts to expose these abuses and insure the integrity of our courts have

been thwarted at every turn.

Co-workers and court support staff are afraid to blow the whistle for fear of retaliation or

losing their jobs. Local prosecutors will not prosecute judges or fellow attorneys. State oversight

commissions will not sanction offenders. Federal law enforcement agencies demand more evidence

than personal statements before conducting their own investigations. The media will rarely

investigate claims of court abuses.

The word of one or many court watchers has proven insufficient against the word of a

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judge or a lawyer. This problem is exacerbated by the fact that the judges and lawyers all stick

together, and court watchers face formidable odds when it comes down to “he said, she said”

situations. Court watchers themselves frequently become the victims of unbridled retaliation,

defamation and violations of rights for having the temerity to continue their public participation

and exposure, compounding the perpetration of court abuses upon a trusting public. Consequently,

public confidence in our judicial system is at an all-time low.

But the situation gets worse. One would think that the verbatim record of the proceedings

in question could provide valuable evidence to support court watcher claims. However, it has

become obvious that if court officers are willing to commit offenses against the interests of justice,

they also have no qualms about altering, concealing or destroying any evidence of those acts.

To their shock and horror, court watchers nationwide have discovered altered court files

and altered or even missing court recordings and transcripts. The backup they relied upon to

support their claims have proven to be unreliable. Once again, their efforts to rely on the

protections afforded by the system have been critically undermined by those who administer the

system. This potential for corruption is recognized by the highest court of our land in Near v. State

of Minnesota ex Rel. Olson, 283 U.S. 697 (1931):

. . . the administration of government has become more complex, the opportunities

for malfeasance and corruption have multiplied, crime has grown to most serious

proportions, and the danger of its protection by unfaithful officials and of the

impairment of the fundamental security of life and property by criminal alliances

and official neglect, emphasizes the primary need of a vigilant and courageous

press, especially in great cities.

Many court watch groups and individuals, having exhausted all available remedies, have

determined it is necessary to take the next logical step. To create their own verbatim record of the

proceedings they are observing with their own recording devices.

In a court situation, a judge and all employees and officers of the court are public officials,

to whom attaches no expectation of privacy. A person, whether a party to the case or a member of

the public, has the right, and even the duty to document any court hearing which is open to the

public in whatever manner is most useful to him and which does not disrupt the business of the

court nor interfere with proper decorum.

If private note taking, private verbatim transcribing with shorthand or a transcription

machine or laptop computer is permissible, so should unobtrusive and discreet audio or video

capture of the same proceedings be permissible. Written documentation is frequently insufficient,

due to its inherent failing to accurately document tone of voice or body language.

Documentation should be allowed through non-disruptive recording by any party or

member of the public present in the gallery. There is no expectation that this private recording

would be considered an official record by any means. However, especially in situations where the

official record could be altered or is missing, a private recording would document the proceedings

sufficiently to support any resultant claims and investigations.

Recording would also assist a party in the preparation and presentation of his case and help

to insure compliance with court orders. This is especially critical in child welfare cases

Finally, recording would sufficiently document the hearing to meet the unofficial needs of

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the individual without the delay and burden of expensive, official transcripts.

Today, audio and even video recording devices are so small, so simple to operate, so

discrete and affordable that virtually everybody owns at least one. These devices range from hand

held to smaller than a quarter.

With the larger ones, changing a cassette tape is so quiet and unobtrusive that a court would

be hard pressed to even detect the changing of a tape during a proceeding. In most instances, such

tapes could be changed during breaks and the court would never even know a recording of the

proceeding was being made. This would be no more disruptive than a person taking notes or typing

on a laptop or the court reporter transcribing the hearing. Indeed, many courtrooms use their own

tape recording devices and the proceedings are routinely disrupted to change the official tape.

But should a court unreasonably find that a handheld cassette tape recorder is “disruptive,”

there is no way it could find a digital recorder disruptive. These devices, held in hand, are less

disruptive than a person holding a pad and pen. Set on a table or lap, or inserted into a pocket, their

functioning is virtually undetectable. They offer less distraction than filling a glass from ubiquitous

pitcher of water. There is no substance behind any claim that a digital recording of court

proceedings would be disruptive, therefore, there exist no more valid grounds to prohibit the public

from capturing digital recordings of hearings than there is to prohibit note-taking during

proceedings.

CONCLUSIONCourts are open to the public, therefore, there is no expectation of privacy during a court

proceeding.

Judges, District Attorneys and officers of the court are public officials who have waived

any expectation of privacy by virtue of accepting their office. Their official acts and conduct are

subject to unfettered public observation, documentation, review and criticism.

Court watching is a public participation activity protected by the first amendment.

The media cannot be afforded special privileges unavailable to the general public.

The sole reason for the judicial canon restricting recording was based on the intrusion of

the recording devices into court decorum. That reason is no longer relevant. Judges cannot impose

unfair, unreasonable or proprietary restrictions on the unobtrusive documentation of their conduct

and official business.

Public scrutiny and documentation of child protection agency and court proceedings is

always in the best interests of the child.

The canon limiting expanded media coverage does not apply to the discreet, and even

undetectable recording of court proceedings by any member of the public in a courtroom, whether

they are a party to the case or a member of the public seated in the gallery. If the court is unaware

that any recording is being created during a hearing open to the public, by whatever legal means,

the court has no discretion to prohibit the recording or punish the person creating that recording.

Audio and Video Recording Public Officials

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