RSA Section 91-A:2 of state law, "Access to governmental records and meetings," stipulates that in a public meeting, "any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings." (David Carkhuff/Laconia Daily Sun)
By DAVID CARKHUFF, LACONIA DAILY SUN
LACONIA — Area board members appear to be confused about where the state's wiretapping law ends and the public meetings law begins.
In two recent examples, a Laconia Daily Sun reporter attempted to tape record a public meeting, only to receive admonitions that the action in itself triggered a requirement for disclosure.
Norman J. Silber, chairman of the Gilford Budget Committee, halted a Budget Committee meeting held at the conclusion of Gilford's school district deliberative session on Feb. 10 to admonish a reporter that recording a discussion without consent of the person speaking was a felony. Silber is a legislator from District 2, Gilford.
The individual speaking, Budget Committee member Kevin Leandro, gave his consent for his comments to be recorded, in spite of the lack of any such requirement in state public meetings law.
On March 16, the Gilmanton Zoning Board of Adjustment held a public meeting, and Chairman Elizabeth Hackett paused the discussion to caution a reporter covering the meeting that he needed to notify those present before recording the proceedings.
Legal experts say the public meetings law in New Hampshire explicitly allows tape recording of public proceedings, without any disclosure requirements.
"It's a little hard for me to believe that the wiretapping statute ... applies to a public meeting. This is a meeting that is supposed to be happening in public," said New Hampshire attorney Richard Gagliuso, board member with the New England First Amendment Coalition.
"The Right to Know law says any person shall have the right 'to use recording devices, including, but not limited to, tape recorders,'" Gagliuso said, quoting the state law. The right to record public meetings does not come with any requirement for disclosure, he said.
"You have the right to do it without necessarily announcing it in advance," he said. "I don't think you have to get permission or announce it."
RSA Section 91-A:2 of state law, "Access to governmental records and meetings," stipulates that in a public meeting, "any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings."
So why the confusion?
The answer may lie in the fact that recording communications outside of public meetings ventures into legal territory rife for litigation and legal interpretation, particularly in New Hampshire.
Under 570-A in state law, "wiretapping and eavesdropping," a person is guilty of a class B felony if they willfully intercept, endeavor to intercept or procure any other person to intercept or endeavor to intercept "any telecommunication or oral communication." A person is guilty of only a misdemeanor if there is prior consent of one of the parties to the communication.
Wiretapping laws often are employed against individuals secretly filming for political purposes.
The Los Angeles Times reported on Tuesday, "Two antiabortion activists whose controversial undercover videos accused Planned Parenthood doctors of selling fetal tissue were charged Tuesday with 15 felonies by California prosecutors. State Atty. Gen. Xavier Becerra's office alleges that David Daleiden and his co-conspirator, Sandra Merritt, filmed 14 people without their consent at meetings with women's healthcare providers in Los Angeles, Pasadena, San Franciso and El Dorado."
On March 24, The Boston Herald reported that U.S. District Court Judge Pati Saris tossed out a lawsuit in Massachusetts "brought by a conservative activist group challenging the state's wiretap statute."
"Secretly recording a person in the name of undercover journalism is not a constitutional right in Massachusetts," the judge ruled, according to the article.
Project Veritas, an organization helmed by James O'Keefe, challenged the state's wiretapping law.
"An attorney for Project Veritas said the group's legal team is mulling their options, and that they will likely appeal," the Boston Herald reported.
According to the Digital Media Law Project (www.dmlp.org), the First Circuit with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island has ruled that a "citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
In 2015, Hillsborough County Superior Court Justice Gillian Abramson ruled in favor of a defendant who secretly recorded a conversation with police by using his cell phone. Following the incident, the defendant faced prosecution. In dismissing the case, Justice Abramson ruled that "the State does not allege defendant actually filmed any confidential information or undercover officers. As such, the conduct for which defendant has been criminally charged is protected by the First Amendment."
In January 2012, the Department of Justice filed a statement of interest in a case, Sharp v. Baltimore City Police Department, and concluded, "The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily."
Gagliuso said wiretapping law has been adjudicated, but that plenty of gray area has emerged with other advances in technology.
"The hot issues today involve police body cams, drones, some of the new technology," he said.
As for public meetings, even an association which advises municipal officials has noted the right to record.
The New Hampshire Municipal Association reported in a 2015 document, "Anyone (not just local residents) must be permitted to attend any public meeting. They may take notes, tape record, take photos and videotape."