First Amendment Project: barring public from filming a BDCP public meeting is illegal

First Amendment Project: barring public from filming a public meeting is illegal

by Dan Bacher

Restore the Delta on September 16 released an expert legal opinion finding that attempts by Department of Water Resources (DWR) and Bay Delta Conservation Plan (BDCP) officials to bar anyone from videotaping at any “public meeting” are illegal - and violate the First Amendment.

The legal opinion from the First Amendment Project to Restore the Delta refutes DWR's assertion that barring Gene Beley of the Central Valley Business Times or other Delta residents from recording activities at the DWR “Office Hours” held in Delta communities is "legal."

“The agency has no legal right to exclude members of the public who wish to record the public officials' answers to their questions,” said Barbara Barrigan-Parrilla, Executive Director of Restore the Delta. “The staff who are imposing such restrictions should be made to cite chapter and verse on what legal authority they have to prevent members of the public from recording that which is occurring in public where they have a right to be and what they can hear with their unaided ear.”

Nancy Vogel, Director of Public Affairs for the Department of Water Resources, responding to the release of the legal opinion, said, "We’re not barring anyone from our in-Delta office hours, and we don’t intend to get into a duel of legal opinions."

However, Barrigan-Parrilla pointed out that the BDCP website states that members of the public are not allowed to videotape these "Office Hours. "That's illegal," she said.

"In order to encourage full participation, video recording will not be permitted," the website states, in reference to the "Office Hours." (http://baydeltaconservationplan.com/Calendar/ViewEvent/13-08-28/2_00_p_In-Delta_Office_Hours-3241964804.aspx?ReturnURL=%2FCalendar%2FCalendar.aspx)

Jim Wheaton, Founder and Senior Counsel of the First Amendment Project and Lecturer in Journalism Law in the Graduate Schools of Journalism at Stanford and University of California, Berkeley disagrees strongly with the Brown administration's contention that BDCP and DWR officials can legally bar people from videotaping public meetings.

“The general rule is that a person is free to record, by audio recording, video recording or photograph, anything that can be heard or seen with the unaided eye," Wheaton said.

"There are three general limitations on this: (1) the person doing the recording has to be in a place they have a right to be (i.e. a trespasser has no right to record), (2) the person doing the recording cannot use a means to get access to the sight or sound by, for example, climbing a tree to look over the fence, (c) the person being recorded does not have a reasonable (objective) expectation of privacy (e.g. in the gym locker room)," he stated.

“The only codification of this law is found in the California Penal Code, section 632. There is a common body of law that addresses the invasion of privacy tort called ‘intrusion,’ which deals with people getting access to places or information they don't have a right to. But that common law tort turns on exactly the same standard: did the person have an objectively reasonable expectation of privacy. (See, e.g. Shulman v. Group W Productions (1998) 18 Cal 4th 200.)

"Hence the language and case law under the Penal Code are instructive. For what it's worth, the common law tort contains an extra element not found in the Penal Code, that the recording be ‘highly offensive to a reasonable person.’ Hence we will use the more privacy-protective language of the Penal Code to analyze whether there is a ‘reasonable expectation’ against recording.

“‘Penal Code section 632(a)’ prohibits [e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any. . .recording device,. . .records the confidential communication. . .

“Section 632(c) defines ‘confidential communication.’ ‘The term 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.’

“Illustrative of the concept is Fiddle v. Epstein (1993) 16 Cal.App.4th 1649, in which a meeting of a real estate broker with purchasers carried an expectation that the participants would repeat what was said to others; this defeated any idea that the meeting was intended to be confidential under the Privacy Act. (But cf. Shulman, supra 18 Ca;.4th at 234-235, and Sanders v. American broadcast Co's. (1999) 20 Cal.4th 907, 915 [distinguishing expectation of complete privacy in the content of the communication from expectation against it being recorded],” said Wheaton.

Wheaton continued, “The exclusion is telling for the situation here. The definition of what may not be recorded without consent expressly and categorically ‘excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public. . .’ That appears to answer the question decisively.”

Wheaton concluded, “The meetings described are a ‘public gathering’ and an ‘executive proceeding. . . open to the public’, they are held in a public meeting room, they are with public officials, and there is no expectation that what the public officials say will remain confidential with the member of the public. Whether conducted, as a broad meeting with an audience, or with an audience of one, there is no objective expectation that these are ‘confidential communications.’”

Reporter and Delta resident Gene Beley explained, “I had the permission of the Delta residents that I included in the videos that we used... just not the DWR employees or their consultants. Also, I am a Stockton resident and property owner."

"I began reporting on this issue when I felt there was not enough publicity for the Delta residents from mainstream media. Now, just when the mainstream media is becoming interested, it is crucial to allow TV cameras into these venues to shine the spotlight on this multi-billion twin canal project," said Beley.

Barbara Barrigan-Parrilla added, “Caltrans removed our campaign signs and refuses to answer our requests for citing the legal authority behind their determination that signs must be 14 feet from Highway 160. Now DWR is seeking to restrict the rights of Delta residents to document what transpires in public meetings."

"Clearly the Brown Administration is trying to silence the opposition to the peripheral tunnels project. But it won’t work. Because each time they try to take away the rights of Delta residents, more Californians realize how unjust the project is and begin to question what the Brown Administration is trying to hide," she affirmed.

The opinion was released as the Brown administration is fast-tracking the $54.1 billion Bay Delta Conservation Plan (BDCP), started under the Schwarzenegger administration, to build twin tunnels to export water to corporate agribusiness interests irrigating drainage-impaired land on the west side of the San Joaquin Valley. The peripheral tunnels under the Delta will hasten the extinction of Central Valley Chinook salmon and steelhead, Delta smelt, longfin smelt, green sturgeon and fish species, as well as posing an enormous threat to salmon and steelhead populations on the Trinity and Klamath rivers.

To see Gene Beley’s video of the Brentwood DWR “Office Hours” meeting go to http://vimeo.com/73928299.

In recent years, many reporters have been harassed and arrested for exercising their First Amendment rights in a climate of increasing repression of Freedom of Speech by the state, federal and local governments.

For example, David Gurney, an independent film maker from Fort Bragg, sued officials from the Marine Life Protection Act (MLPA) Initiative and state agencies in Mendocino County Superior Court over his arrest for recording and speaking at a "work session" in Fort Bragg on April 20, 2010. http://www.indybay.org/newsitems/2011/01/21/18669769.php.

In a controversial ruling in July 2012, a Ukiah Superior Court judge ruled in Gurney v. CA DFG et al – that California’s Marine Life Protection Act Initiative “North Coast Regional Stakeholders Group” "was not subject to California’s Bagley-Keene Open Meeting Act laws, nor the state or federal Constitution," according to Gurney.

According to Hon. David Nelson, neither the MLPA Initiative’s staff, its commercial contractors, nor the 34-member “North Coast Regional Stakeholders Group” (NCRSG) were bound by state laws that assure the public and the press the right to record public meetings. (http://noyonews.net/?p=6691)

About Restore the Delta (RTD: Restore the Delta is a 10,000-member grassroots organization committed to making the Sacramento-San Joaquin Delta fishable, swimmable, drinkable, and farmable to benefit all of California. Restore the Delta works to improve water quality so that fisheries and farming can thrive together again in the Sacramento-San Joaquin Delta. For more information, go to: http://www.restorethedelta.org

Background: the Brown administration's terrible environmental record

The rush to build the peripheral tunnels under the Bay Delta Conservation Plan is not the only abysmal Schwarzenegger administration policy that the Brown administration has continued and expanded.

Brown and Natural Resources Secretary John Laird continued the privately-funded Marine Life Protection Act (MLPA) Initiative started by Governor Schwarzenegger in 2004. The conflicts of interest, failure to comprehensively protect the ocean, shadowy private funding, incomplete and terminally flawed science and violation of the Yurok Tribe's traditional harvesting rights have made the MLPA Initiative to create so-called "marine proected areas into one of the worst examples of corporate greenwashing in California history. (http://intercontinentalcry.org/the-five-inconvenient-truths-about-the-mlpa-initiative)

In a huge conflict of interest, Catherine Reheis-Boyd, President of the Western States Petroleum Association (WSPA), chaired the Marine Life Protection Act (MLPA) Initiative Blue Ribbon Task Force to create so-called "marine protected areas" in Southern California. Reheis-Boyd, the oil industry's lead lobbyist for fracking, offshore oil drilling, the construction of the Keystone XL Pipeline and the evisceration of environmental laws, also served on the MLPA task forces for the North Coast, North Central Coast and Central Coast.

The Brown administration also authorized the export of record water amounts of water from the Delta in 2011 – 6,520,000 acre-feet, 217,000 acre feet more than the previous record of 6,303,000 acre feet set in 2005 under the Schwarzenegger administration.

Brown also presided over the "salvage" of a record 9 million Sacramento splittail and over 2 million other fish including Central Valley salmon, steelhead, striped bass, largemouth bass, threadfin shad, white catfish and sturgeon in 2011. (http://www.counterpunch.org/2012/05/07/carnage-in-the-pumps/)

Most recently, Brown's office said on September 11 that the Governor will sign Senator Fran Pavley's gutted fracking bill - legislation that creates a clear path to increased hydraulic fracturing in Monterey Shale deposits in California. The groundwater and surface water pollution resulting from increased fracking poses enormous risk to fish populations in the Central Valley and ocean, as well as to human health.

Calling the legislation "an important step forward," Brown spokesman Evan Westrup said the Governor "looks forward to signing it once it reaches his desk." (http://www.alternet.org/fracking/california-poised-enact-dangerous-fracking-bill)

Other environmental policies of the Schwarzenegger administration that Brown and Laird have continued include engineering the collapse of six Delta fish populations by pumping massive quantities of water out of the Delta; presiding over the annual stranding of endangered coho salmon on the Scott and Shasta rivers; clear cutting forests in the Sierra Nevada; supporting legislation weakening the California Environmental Water Quality Act (CEQA); and embracing the corruption and conflicts of interests that infest California environmental processes and government bodies ranging from the Bay Delta Conservation Plan to the regional water boards.

There is nothing "green" about Governor Jerry Brown other than the tainted corporate money that he worships.