Local officials challenge reporter’s right to record public meetings

03 30 public meetings recording

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)



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."

County Complex or OK Corral?

Belknap County officials remain at loggerheads over budget as deadline nears


LACONIA — The Belknap County Commissioners, together with members of the Belknap County Delegation, are continuing to press for the posted meeting of the delegation, scheduled to begin at 6 p.m. Tuesday night, to proceed in an effort to reconsider the county budget before the deadline for its adoption passes at midnight on Friday.

Shortly after 6 p.m. on Friday, March 24, Rep. Herb Vadney (R-Meredith), the chairman of the delegation, sent an email to member of delegation, which read "The meeting scheduled for Tuesday, March 28th is cancelled. Thank you for your patience and hard work."

Nevertheless, some members plan to attend and, if they can muster a quorum of nine of the 17 members, proceed to conduct business, including reconsideration of the budget. Rep. Tim Lang (R-Sanbornton) said Monday, "I plan on being there and hope others will also attend. It was a publicly noticed meeting," he continued, "and I can find no authority for the chairman to cancel it on the fly." He said that if a quorum is present and the officers of the delegation are absent, he would propose electing a chairman pro tem to preside. Lang said that if asked, he would be willing to serve as chairman pro tem.

Vadney confirmed Monday that the meeting has been cancelled and said that he will be in Concord Tuesday evening.

"As far as I know the delegation will not be there," he added.

Asked about the prospect of a quorum convening and acting in his absence, Vadney said "if they can find a way to do it legally, and I doubt it, they can go ahead."

Asked if he would challenge in court action taken by members of the delegation without what he deemed the sanction of law, Vadney said "I haven't thought that far forward, but probably so."

The confrontation, which began to simmer last week, came to a boil over the weekend, hard on the heels of Vadney announcing cancellation of the meeting. Within 20 minutes Lang emailed members questioning Vadney's authority to cancel the meeting. He quoted from Roberts Rules of Order, which read "Nothing in Roberts gives the authority to any person or body to cancel a properly scheduled meeting. That authority would have to come from your bylaws or other governing rules." Noting that the delegation has not adopted bylaws or rules and that state law provides no direction, he suggested that Roberts Rules of Order should apply.

Rep. Dave Huot (D-Laconia), replied "I agree with Tim and object to the cancellation. This is compounding one disaster and creating another."

The next day Huot reminded members of the delegation a state statute, RSA, 24:9, that requires the chairman of the delegation to convene a meeting at the request of the county commissioners. Rep. Peter Spanos (R-Laconia) advised Vadney of the statute and sought his clarification

The meeting scheduled for Tuesday night was originally scheduled when the delegation met on Feb. 28. On March 16, a week before the delegation adopted the budget, the commissioners requested that "at one of your remaining scheduled meetings in March, you reconsider the County budget." In particular, the commissioners referred to the deep cuts to the budgets of the Corrections Department and Sheriff's Department and the halving of the contingency account, which with pending expenditures is in deficit before the end of the first quarter.

On Monday, the commissioners wrote to Vadney, reminding him of the state statute requiring him to convene a meeting of the delegation at their request and asking him to consider their letter as a second request. Commissioner Hunter Taylor said that Vadney had not replied to the request.
The county commissioners and dissident members of the delegation seek to restore cuts to the budget of the Sheriff’s Department of $126,756 that Sheriff Mike Moyer claims have jeopardized its capacity to fulfill its constitutional and statutory responsibilities while the $95,400 struck from the Corrections Department which included funding for two positions, could delay the opening of the new Community Corrections Center. At the same time, the budget includes just $75,000 for contingencies, which will be exhausted by $63,000 required to replace the sprinkler system int he nursing home and $15,000 to pay the interest on the borrowing to fund operations until the receipt of property tax revenues.
Moreover, the budget includes nearly $300,000 in revenue in anticipation that the state will contribute 15 percent of the employer contribution toward the pensions of county employees. The legislation, which requires an appropriation of $40.8 million, has yet to be endorsed by the House Finance Committee, yet alone added to the state budget.
Moreover, since the legislation would apply only to employees of the Sheriff’s Department and Corrections Department, County Administrator Debra Shackett estimates it would spare the county only $75,000 in expenses.


‘Blindsided’ on campground

Woman proposing project shocked at reaction to plan


LACONIA — A Massachusetts woman proposing to build a campground near Pickerel Pond says she's undeterred by vehement opposition from the neighborhood.

Jill Miller of Chelmsford said Monday that she and the project are misunderstood, and that she'll appear before the Laconia Zoning Board of Adjustment on April 17 with more specific plans for the 99 acres she is planning to buy near Parade and Roller Coaster roads.

Board members told her in a meeting on March 20 that she needs to provide details, including how many camping spaces would be included and how sewage will be handled.

Several people who live in the area spoke against the proposal during the meeting. They complained of the potential for pollution, traffic hazards and harm to property values.

"I kind of felt blind-sided," Miller said. "I felt personally attacked. If they had so many concerns, why not pick up the phone and talk to me?"

She said some of those in opposition suggested falsely that she wants to build a saloon. Miller does not want to sell alcohol. She envisions a small camp store providing essentials to guests and the community. Food like hot dogs and pizza might be sold.

Miller said a well-run camping area in operation part of the year would be less intrusive to neighbors than other potential uses, like a subdivision with 17 homes, as is being suggested in an online ad for the property.

"I want this to be a family campground, where the Boy Scouts could come," she said. "I'm trying to do something that will bring tourism to New Hampshire. Any building would be in a log cabin style, or a rough timber style. There would be no eyesores, no neon signs."

Traffic studies would be done to ensure the safety of those entering and leaving the campground, she said.

Miller also said she would strictly enforce rules against trespassing. Walls and signs would be in place. She also some of the neighbors who have complained about the potential for trespassing have actually been trespassing on the land she plans to buy.

"I'm absolutely open to any concerns, any suggestions of the neighbors," she said. "I think they should be more concerned about the potential for a subdivision going in there where people would be using four-wheelers and dirt bikes to go bombing around the property."

Peter Spanos, who lives on land adjacent to the planned project, said much of the property is in a wetlands area not suitable for development.

"It could be used as a very small residential development, with maybe five or six buildable lots," he said. "Even that would be difficult to get through the Department of Environmental Services.

"This is a sensitive area environmentally and a comprehensive study must be made."