Saturday, 8 February 2014

Some thoughts on recording town council meetings

The Accountability Act will soon enable the public and news media to make recordings and take photographs in council meetings. The new guidance explicitly states that councils in England should allow the public to film, blog and tweet council meetings.

I am not a lawyer but as a photojournalist I try to keep abreast of copyright and privacy issues. As a town councillor I am interested in making local government as open and transparent as possible.

Unless mentioned otherwise, for the purposes of this paper, recordings mean both sound recording and the taking of photographs, both separately and synchronised and both still and moving pictures.

I consider there are four areas of this topic where different laws or practice might apply:

  • The recording of meetings by the council itself.
  • The recording of meetings by the public.
  • The publication of council recordings.
  • The publication of public recordings.
I consider councils will need to prioritise forming a policy around the public recording of meetings as these recordings are more difficult to enforce any rights or protections due by them and there is less case law and practise to refer to.
There are many advantages for a council in allowing and making recordings. Firstly, access by media is generally beneficial; it disseminates knowledge of the work of the council and promotes engagement with the public. Recordings remove any doubt in the minutes taken and it also discourages any physical or verbal intimidation by members of the public or town councillors in the proceedings. It could enable councillors to give a verbal report if they haven’t prepared a written one.

Since the public will not be restricted from recording meetings, if the public regularly exercise that right, it may put an onus on a council to make and keep their own recordings as an official record in case there is any dispute over the content of recordings. Recording sound from the public area is unlikely to be under optimum conditions. It has been my experience that journalists have sometimes sworn they have something on tape and have written stories with supposedly verbatim quotes but when the published story is checked, no such quotes can be found.

The council making its own recordings presents a number of technical challenges as many meeting are held in multi-purpose rooms. If a recording is made it will have to be stored and must be accessible under FOI. It would be an ideal situation if the council had the means to offer recordings as an online archive and also stream the audio or video of meetings live but I doubt many can afford to.

The concerns that subjects of recordings naturally  often have is that the recording will be used out of context or in a way which will subject them to unwanted forms of public attention. The potential for that exists for as long as the recording is extant. The editing of video into a ‘mash-up’ to literally put words in people’s mouths as a form of satire or the recording say of an inadvertent ‘clothing malfunction’ could subject them to ridicule. There are several defences to exploiting recordings in a manner that could embarrass the subject but are in the public interest or protected as free speech. However for the councillor standing to speak, that is one of the burdens of civic service.

The council cannot restrict the recording of proceedings for a legitimate purpose but it may be able to restrict – as condition of giving access – the dissemination of recordings for other than for a legitimate purpose. It would be worth getting more guidance on this area. 

It’s important to bear in mind there is a difference between recording and to publishing. In general, to ensure an open and transparent government, recording of council meetings should not be restricted but publication of such recordings should only be for that purpose too and so may be restricted to that. The question arises how can that be imposed and enforced?

It could be argued that the council retains a right to set reasonable conditions on the publication of recordings, so long as the citizen’s right to record and observe meetings are not unduly or unreasonably hampered. There are potentially several ways to enforce those rights.

If the publication of the recording has no legitimate purpose connected with the activity of the council, it may be possible to impose that as a condition of  access. Reporting on the delivery of government whether specifically or generally by professional news media would be generally held to be legitimate. The use of recordings of the council as the basis for an advertisement of an unrelated product could be a misappropriation and so publication would require the permission of the council, which in turn might require the permission of every subject with regards to their ‘image rights’.

At present in English law there is no basic right to privacy. That means that you can freely record anyone, even children, in a public place, so long as the act of recording does not cause alarm or distress or another kind of nuisance. There are some challenges to concept of unfettered recording in public under Human Rights legislation but these have not been fully tested in the courts yet.

It is perfectly legitimate to take a photograph any person in a public place without their permission but if you use that photograph to infer any kind or endorsement or make direct reference to a recognisable person saying or implying something untrue, you could violate their rights. 

There is the case of an anonymous man photographed crossing Wall Street. The photograph was cropped to show him prominently and used by the New York Times for an article discussing “The Black Middle Class: Making It.” The man in the photo Clarence Arrington was recognised by his friends. He successfully sued because although he was African-American, he did not agree being called “middle class”. However in the US the publisher was safe under First Amendment rights but the photographer was found liable to Mr Arrington because the photographer had sold the image for commercial gain.

There can be reasonable restrictions put on recording activity. Bringing equipment like lights and tripods into the council chamber could be a safety hazard and noisy camera shutters or beeping electronics and flash photography are distracting, so that can be barred from the chamber. But if the equipment and the operators are professionals, accredited media should be given reasonable accommodation in recording public sessions of council meetings. The question of accreditation I will come to later.

There are various ‘duties of care’ applied to photographing vulnerable people and children in care but these are often misinterpreted and applied  globally to the taking of any photographs. Nowadays many parents are prevented from photographing the school play. Actually the duty of care is limited to very few types of person and meant to apply to the identification of people in published photographs. This is very hard for schools to manage, especially with social media, so a culture of banning all forms of photography in schools has arisen.

I recall a local case where a child under a care order and living with foster parents was photographed amongst many other children at a birthday party and a photo was put on social media but the names of the respective children were not published. However the children in the photo began ‘tagging’ the photo with their friends’ names. Thus the identity of the child was searchable to anyone with a computer, including the child’s estranged parents.

Therefore the council may have a duty of care to restrict photography to solely the council business and under data protection requirements, the publication and identification of members of the public recorded solely in observance of the council meeting should be restricted. In the past councils have cited 'data protection' as a reason to bar recording at meetings but it's clear that Mr. Pickles' advice overrides this.

A security system may be already recording members of the public but access to and publication of those recordings is covered by data protection. The distinction is needed to be understood; “data protection” does not generally restrict the making of recordings for a legitimate purpose, it prevents the dissemination of personal data except for a legitimate purpose. The council will be responsible for its own recordings but since it must permit the recording of meetings, it cannot now be held liable for the actions of others and the same burden of liability falls on all those making recordings.

In general the right to take photographs on private land upon which permission has been obtained is similarly unrestricted. However, landowners are permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography. The question of what is a public space is complex but I would think that a council chamber to which the public are admitted is for the time in effect a public space and the presence of the public is so permitted and so such restrictions on the basis of landowner’s or occupiers permission may be found unenforceable if tested.

There is no legal definition or accreditation for a journalist in the UK. A ‘citizen journalist’ has the same rights and responsibilities as a BBC reporter and has the same privileges of access to government and vice-versa. The UK Press Card system is sometimes used as an accreditation to give priority to working media by police forces. The cards are recognised by APCO but in law give no authority or privileges, but are accepted as a means of identification by UK Police forces who may, at their discretion, give cardholders access beyond that afforded to the general public.  Possession of a press card is not an accreditation but it does give some implied warranty that the person holding it understands the duties of a journalist to the council and the public.

APCO recognised Press Cards are issued by:

Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU)
British Press Photographers' Association (BPPA)
Chartered Institute of Journalists (CIOJ)
Foreign Press Association (FPA)
ITV Network Ltd
International Visual Communication Association (IVCA)
National Association of Press Agencies (NAPA)
National Union of Journalists (NUJ)
Newspaper Publishers Association (NPA)
The Newspaper Society (NS)
Professional Publishers Association (PPA)
Sky News

I consider councils should permit the unrestricted recording of open council meetings by accredited journalists who are employed by established news organizations and are attending the council meeting for the express purpose of gathering news and information to provide editorial coverage of the council. It would be reasonable to ask journalists to submit their media credentials to the clerk for notation in the record of attendance and to 'fast track' the provision of guidance on the recording of meetings. “Citizen Journalists” or those without a press card can be similarly credentialled on signing acceptance of the council’s media policy of no commercial exploitation of the recording except for legitimate editorial coverage.

This would not restrict the right of the public to make recordings but with that agreement in place, the council would be more able and willing to accommodate the ‘citizen journalist’ better in order to make more useful recordings.

With specific reference to the right of the public to ask questions of the council; it could be impractical from the council’s purpose to prevent or restrict audio recording in this instance and that recording is necessary as a public record. The recording devices under the control of the council and accredited media should not be restricted from recording those members of the public asking questions.

Eric Pickles’ guidance says “the council should consider adopting a policy on the filming of members of the public speaking at a meeting, such as allowing those who actively object to being filmed not to be filmed, without undermining the broader transparency of the meeting…”

In most instances of interaction with the council, a person’s name becomes a public record such as on an application to the council for funding, a comment on a planning or licensing application, which must record the applicant’s name and address. At public meetings the clerk notes the name of the person asking questions and their name has to be given to ensure they are a proper constituent of the council.

It seems reasonable then that a person asking a question of the council does not have the absolute right of anonymity. The recording of a reply given by councillors to a question would lose some of its context if the question was not recorded. Pickles does not insist that people have the right not to be recorded but that it should be considered. In which case I would suggest a compromise is a policy that only the council business can be recorded and a person asking a question does not need to be filmed but the audio can be recorded. If a person insists that there is no audio record of their question, then they can put the question in writing to the clerk who will read it out, acknowledging that the person is a proper constituent.

Draft Recording Policy

The recording of council meetings by members of the public and accredited media is permitted and otherwise unrestricted on the following conditions. 

The presence of persons in the chamber during the council meeting is deemed to be their permission to be recorded in any medium.

Press representatives, members of the public or individual officers or elected members making their own full or partial recordings of meetings must respect the law, including Human Rights and Data Protection legislation and intellectual property rights where they apply. They will be responsible for any allegations of breaches of the law which may results from their use of recorded material and are admitted to the Council Chamber on the basis that they accept this responsibility.

Press representatives, members of the public and elected councillors are permitted to make their own recordings of meetings from the public area, subject to the provisions of this policy but they must notify the Chair of their intent to record prior to the start of the meeting.

Recording equipment or the process of recording cannot interfere with the proceedings of the meeting, nor interfere with public observance or impinge on public safety and all public and media recording must take place from the public area. The use of tripods or lights on stands or placing equipment on seats or in a gangway is not permitted unless previously agreed with the council’s chairperson. All recording equipment must operate silently and no flash photography or any form of extra illumination is permitted. No microphones, cables, booms or stands, recording or transmitting devices may be placed around the council table and seating area or used outside the public area without the expressed permission of the council.

Recording by members of the public is only permitted for the legitimate purposes of recording for reference or reporting on the business of the council or other uses reasonably in the public interest. Recording may only take place after the opening of the meeting by the chair and must stop at the closing of the meeting (gavel to gavel).

The copyright in any recording of the council business remains with the council, though the media it is recorded on can belong to another entity. Any rights associated with a recording or parts therein of the councils business cannot be sold or let or available for hire nor commercially exploited without permission of the subjects. The publication of video or audio recording on commercial media channels such as YouTube generating advertising revenue is not permitted without the expressed agreement of the council unless it is clearly and demonstrably in the public’s interest; such as offering a verbatim, unedited account of the proceedings to enable public participation in local governance. The editing or mixing of the recording with other media for any purpose unrelated to editorial reportage of the council is not permitted.

The subjects recorded in the council chamber must be pertinent to the council’s business. For common courtesy and for data protection, the members of the public attending in observance should not be recorded except when interacting with the council, such as when asking questions or when otherwise relevant to the council in matters of safety or security. Those making recordings are asked to show courtesy to other members of the public and refrain from directly filming members of the public who are asking questions of the council or submitting comment (such as licensing or planning) although audio recording is permissible.

To ensure compliance with data protection, the recording of subjects not pertaining to the meeting or council business is not permitted in the council chamber. The copying of documents except those in the public folder (unless those are marked confidential) is not permitted. The copying of private notes taken by councillors – with the use of a telephoto lens for instance – is not permitted. However, notes taken by councillors can be subject to FOI request.

The council may operate its own recording devices and make recordings either automatically or by persons authorised by the council. These recordings will be logged in the register of council property and marked with the date of recording and accessible by FOI request and kept in a reasonably accessible format and stored for as long as regulation requires.

The council is not obliged in any duty to make its own recordings but if a recording is taken by the council it must be noted on the minutes. If the council’s recording of a public meeting has been started it cannot deliberately stop recording a because a matter of confidentiality arises. Except for equipment malfunction, if a recording of a meeting has begun, the recording must capture the entire meeting to its close. If confidential matters need to be discussed “off the record” then the chair must close the meeting and exclude the public and hold the meeting in-camera, according to the rules of in-camera meetings in its standing orders. In the instance that confidential matters arise inadvertently, the recording must be treated as confidential and may be redacted before release under FOI.
At the start of the meeting, the Chair must remind all present that a recording is being made.

Recordings will not be made by the council, or by any elected member or any other individual for any part of the meeting where the public and press are excluded.

A press representative or member of the public or councillor making a personal recording must comply with any request to cease recording, as instructed by the Chair. Any member of the public recording the meeting must do so from the public area.

The Chairman of the meeting has the absolute discretion to stop or suspend recording if, in their opinion, continuing to do so would prejudice proceedings.

This could include but not be restricted to:

  • Public disturbance or other suspension of the meeting. 
  • Exclusion of the public and press being moved and supported. 
  • Recording by an individual or individuals considered to be disrupting the proceedings of the meeting. 
  • Recording is preventing any other individuals from viewing and listening to the meeting. 
Access to the council’s recordings can be restricted by the Monitoring Officer if they consider that it is necessary to do so because all or part of the content of the recording is likely to be in breach of any statutory provision such as Data Protection and Human Rights legislation, or libel and defamation laws.

The Council takes no responsibility for any recording made by a third party or its subsequent use. Any third party making a recording of a meeting shall be taken to have indemnified the Council against all actions, proceedings, costs, claims, demands, liabilities, losses and expenses whatsoever relating to the making of that recording.

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