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Ely
Ely, Counselor at Law
Category: Legal
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Media law question - Washington State Last night, I attended

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Media law question - Washington State
Last night, I attended a candidate's forum where incumbents and challengers for city and county councils spoke.
The event was open to the public.
The event was on County property, in a county meeting room.
The event was hosted by League of Women voters and other agencies.
I'm a reporter.
I was told no recording of the event was allowed by the moderator and they announced the same before the debate began. Our County Exec was there and said he did not know why recording would not be allowed.
Is that legal?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; and (B) the site allows experts not participate in phone calls and I may or may not be able to participate in this feature.
Yes, it is.
While journalists do get some special consideration, they do not have an extra right to record above other persons.
As for the general ban - it is legal because this is not a formal open meeting by city/county government. Yes, the state Open Public Meetings Act (OPMA) requires that all meetings of governing bodies of public agencies, including cities, counties, and special purpose districts, be open and accessible to the public. And yes, under AGO 1998 No. 15 )video or sound recordings), a governing body does not have authority to ban video or sound recording of a meeting required to be open under the Act; it may regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
However, this is not a meeting of governing bodies, but candidates, for a debate. Thus, it is not subject to either of the above. Even if using public space, since these are two candidates and not a public body/agency meeting, they can regulate recording, arguably.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
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Customer: replied 1 year ago.

What about the public's general right to record information of public interest that takes place on public property? How can an organization use government property for a public event and control recording?

Expert:  Ely replied 1 year ago.
J,
What about the public's general right to record information of public interest that takes place on public property?
That right is not absolute. It has limitations and exceptions, which are actually well-exemplified above.
How can an organization use government property for a public event and control recording?
They can. Unless it is a government agency, it can control recording.
An analogy would be a Moose Lodge using a county facility for its meeting. The Moose Lodge is private. It simply leased the facility for its meeting. It can control taping.
The same thing here, even though the candidates are running for public office.
Now this may a constitutional question here for the Courts - sure. However, unless this is actually petitioned to the Courts, the above is true.
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Customer: replied 1 year ago.

I don't believe the organization leased the government property, they simply used it.

What gives them the authority to supersede public recording policies on public property? They don't own the property and it was an open-to-the public event.

Expert:  Ely replied 1 year ago.
J,
Sorry, I do not wish to argue here with you. Keep in mind I did not create any of the legal doctrines. So please do not shoot the messenger.
I don't believe the organization leased the government property, they simply used it.
They could not have used it without prior authorization. So I am sure the county allowed them to use the space.
What gives them the authority to supersede public recording policies on public property? They don't own the property and it was an open-to-the public event.
Under AGO 1998 No. 15, a governing body does not have authority to ban video or sound recording of a meeting required to be open under the Act; it may regulate recording only to the extent necessary to preserve order at the meeting and facilitate public attendance.
However, this AGO does not apply to private individuals using public property with permission, which this is. As such, private individuals may limit recording even if they are using government space for an event, provided that this is PRIVATE event.
Now, the default rule is that anyone can pretty much tape - see here (warning, instant download) and scroll to Who Can Tape a Debate?
However, if the candidates specifically agree in advance not to tape and ask the audience not to either, they CAN do limit this, even if using a public forum.
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Expert:  Ely replied 1 year ago.
PS - my use of the term "private event" may be a little exaggerated, but the rest of my answer stands as is.
Customer: replied 1 year ago.

Hello,

Not to worry, I'm not seeking to argue. I'm seeking clarification and correct information to the extent possible. I'm clear that you didn't write the law, but I just haven't seen a prohibition in written law to explicitly support their policy. They stated as well that they did not know any legal basis, it was just their policy.

When I stated the organization didn't lease, I meant there was no monetary exchange. Seems to me, without that, there would be no rights of ownership of the space. I appreciate the implicit assertion in your reply that permission to use the space confers as many rights as payment for using the space.

I do wonder what defines "Private" event- this event is what I would consider public- free, open to all members of the public (again on public property about public office) and widely advertised as such in media.

The candidates did not agree to *not* be recorded- they were not aware of this, nor was anyone else until we arrived at the event.

So, the candidates did not apparently request privacy, in fact one said he saw no reason not to record, but the Moderator did.

Thanks very much for the LWV debate download- it appears to me they are not permitted to prohibit recording, but may eject me from the room.... which no doubt would have been controversial.

Expert:  Ely replied 1 year ago.
J,
Thanks.
When I stated the organization didn't lease, I meant there was no monetary exchange. Seems to me, without that, there would be no rights of ownership of the space. I appreciate the implicit assertion in your reply that permission to use the space confers as many rights as payment for using the space.
RIGHT. Sorry if I was not clear about that at first.
I do wonder what defines "Private" event- this event is what I would consider public- free, open to all members of the public (again on public property about public office) and widely advertised as such in media.
See my follow up: (PS - my use of the term "private event" may be a little exaggerated, but the rest of my answer stands as is.)
But even if this was a public event, again, they CAN limit it if they ask ahead of time. Even if in a county space.
So, the candidates did not apparently request privacy, in fact one said he saw no reason not to record, but the Moderator did.
If the moderator did, then this is "equivalent" - the moderator then had implied agency from the candidates to do so on their behalf.
Thanks very much for the LWV debate download- it appears to me they are not permitted to prohibit recording, but may eject me from the room.... which no doubt would have been controversial.
I think honestly, there may be a court case here on first amendment grounds, or at the very least to clarify the right to record of public debates by candidates using public property. However, whether or not one wants to actually DO this is of course, another matter.
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