Little Rock panel's new ban on recording hearings runs counter to AG opinions

 A frame grab from Little Rock police dash cam video shows Officer Charles Starks being escorted from the scene of a deadly police shooting on Feb. 22.
A frame grab from Little Rock police dash cam video shows Officer Charles Starks being escorted from the scene of a deadly police shooting on Feb. 22.

The Little Rock Civil Service Commission's new regulation allowing commissioners to ban photo, video and audio recording devices during public hearings contradicts multiple Arkansas attorney general opinions, experts said Wednesday.

The commission approved a regulation Tuesday that would allow the body's chairman to stop people, including media members, from recording during disciplinary appeal hearings.

Three Arkansas attorney general opinions over the past 40 years have supported the right to record public meetings as long as the recording is not disruptive.

"To prohibit recording of these meetings is contrary to the spirit of the law and to our rights as citizens to hold our government accountable," Arkansas Press Association Executive Director Ashley Wimberly said Wednesday. "The city of Little Rock and these commissioners should value transparency rather than point to some hypothetical action as a reason for blocking public access."

Rick Hogan, deputy city attorney and attorney for the Civil Service Commission, said that because the commission serves in a quasi-judicial role, different standards apply to that portion of the public hearing.

"It's always a public meeting and subject to access under the [Arkansas Freedom of Information Act]," Hogan said. "Anybody can access by being there. But when they act as judges, they take on that role of a judge and it puts a different hat on the meeting itself."

Commissioners approved the regulation two days before the appeal of former Little Rock police officer Charles Starks, who was terminated after a fatal officer-involved shooting earlier this year.

Starks shot 30-year-old Bradley Blackshire eight times on Feb. 22 during a traffic stop. Blackshire drove a car forward during the gunfire, struck Starks on the hip and then knocked him off his feet, injuring the officer.

Starks was cleared of criminal charges April 19 and fired May 6.

Commissioners said in their meeting Tuesday that the timing of the regulation's passing had nothing to do with Starks' coming hearing.

The Civil Service Commission is a seven-member panel that oversees personnel policy, regulations and appeals for the city's Fire and Police Departments. The regulation immediately bars media and citizens from recording or broadcasting if witnesses or attorneys request that they not be recorded.

All Civil Service Commission meetings are recorded in their entirety, and the recordings are kept for a year, per Arkansas Act 1028, which was passed earlier this year and went into effect Wednesday, City Attorney Tom Carpenter said. The recordings are available under the Arkansas Freedom of Information Act.

While explaining the impetus for the new regulation, commissioners pointed to "bloggers" who live-stream videos of meetings and "distracting" cameras that accompany many television news crews. Commissioners also mentioned concerns about their words being twisted or taken out of context. Reporters or citizens posting to social media sites also could influence witnesses who are waiting to testify, a commissioner said.

Hogan said witness contamination -- when a witness who has not testified hears the testimony of someone who has already taken the stand -- was a primary motivating factor for the rules change.

"The intent is clearly to not allow somebody attending the hearing to publish or broadcast someone's testimony during the hearing," Hogan said.

An early version of the regulation called for banning emailing, texting, tweeting or otherwise posting information in the boardroom along with the ban on recording or broadcasting. That version was dropped in favor of the regulation that bans only the act of recording, photographing or broadcasting.

"We may want to address keeping media out in the near future in terms of keeping them from broadcasting," Hogan said during Tuesday's meeting. "What the subcommittee was looking at is: What are you going to do in a hearing when you have various sources that are trying to record live and witnesses are going to be affected by that?"

Robert Steinbuch, a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock, said Wednesday that the body is not a judicial commission despite having some quasi-judicial roles.

"There's not one, there's a series of attorney general opinions that say it is well within the citizen's right to record and videotape," Steinbuch said. "This is not new. This is well-established. If it's not an executive session, if it's otherwise an open meeting, a public meeting, then you can record."

Arkansas' Freedom of Information Act does not address the issue of the general public, including bloggers and other media, recording public meetings, but various state attorneys general in Arkansas have supported the right.

Attorney general opinions are not law, but they guide public officials in interpreting laws.

"I believe there are good grounds to conclude that our FOIA affords persons the right to videotape a public meeting," then-Attorney General Dustin McDaniel said in a 2012 opinion. "According to my research, this also accords with the law in the overwhelming majority of states."

At that time, 31 states had open-meetings laws that allowed for citizens or media to record or broadcast any public meeting or hearing. Ten more states did not have a law protecting the right to record but did have attorney general opinions in support of recording.

An Arkansas attorney general's opinion from 1977 states that members of the media, as representatives of the general public, have a right to make video or audio recordings of public hearings. In 1983, another opinion said the right extends to citizens.

McDaniel did contend, however, that public bodies have the right to regulate video recordings when it becomes disruptive to a hearing.

"While such regulation cannot ban videotaping, the regulation can ensure that the activity is done in a manner that does not disrupt the meeting," McDaniel wrote. "In my view, the mere fact that a member of the public body is uncomfortable being filmed is not a sufficient reason to ban the videotaping."

Hogan said that opinion did not apply to the Civil Service Commission during an appeals hearing.

"I would say it's distinguishable because it's not specifying a meeting where they're acting as a quasi-judicial body, where they're making a determination where someone is making a decision about whether someone will keep their job," Hogan said.

Hogan also said the new regulation is not an "all-out ban" on videotaping or recording, but rather a ban only when the chairman invokes the regulation.

"The way I read it is that it is at the discretion of the chairman," Hogan said. "It will be open at the beginning of the hearing, and the chairman will ask if any attorney is opposed to videoing or recording in order to protect the sanctity of the hearing itself."

Commission chairman Jeff Hildebrand said during Tuesday's meeting that the commission began considering banning recording devices after a blogger live-streamed one of the meetings last year.

A Section on 07/25/2019