Letter to Mayor Lane Regarding Restoration of the Right to Freely Record at City Council

For the last year, Mayor Robinson arrested me for replacing my audio device near the speaker's podium At subsequent Council meetings she had my audio devices confiscated by Sgt. John Bush. This seizure also stopped any recording I was making of the meeting if I was not sitting next to the machine as Bush turned off the machine and refused to return it to me until the end of the meeting. He would not do this if I was crouched either on the floor or a chair which I myself brought and placed next to the device.

At the January 13th meeting Mayor Lane introduced rules essentially banning me from sitting near the audio device when placed near the speaker's dais, but requiring me to be next to the recorder so as not to have it confiscated. Though various reporters including myself ignored these restrictions at the last meeting, Lane has refused to reassure us that he is restoring the right to record freely. I wrote him the following letter.

Previous correspondence with Lane on this issue: https://www.indybay.org/newsitems/2015/01/13/18766842.php
Lane's new decorum rules: https://www.indybay.org/newsitems/2015/01/09/18766602.php
Previous arrest by Mayor Robinson: https://www.indybay.org/newsitems/2014/05/03/18755258.php


MY RECENT LETTER TO LANE:

Don: 

I'm writing to advise you of my needs and the needs of my public regarding audio recording at City Council.

At the January 13th meeting you implemented your new rule banning "unattended" recording equipment anywhere in the chambers except one spot along the wall.  You may regard this as an accommodation, considering Mayor Robinson's total ban.  In fact, contrary to the practice of any other local legislative body I've ever heard of, your new rule severely restricts the mobility of all reporters.  It rationalizes & institutionalizes Robinson's restrictions on alternative media generally & me personally.

A recent Public Records Act request revealed no record of any complaints in the last year regarding my placement of recording equipment.  I attach that e-mail from Nydia Patino.  A prior e-mail from a year ago showed no such concerns during 2013.  Mayor Robinson for her part never made any mention of either specific complaints nor any personal concerns she had other than stating "it's a rule".

No Council member during your recent tenure on Council ever criticized or commented on my placement of a tape recorder within audio range of the speaker at the podium.  

The rule, like Robinson's activation of it, was designed specifically to target me and then not used.  The motivation is content based.  And so it violates both the state and federal Constitutions as well as the Brown Act.  Arresting alternative reporters for recording a Council meeting in the traditional manner is a stressful and shocking experience that I hope I will not have to undergo again.

At the January 13th meeting, your sound system failed. 

Additionally the City Clerk failed to record the audio for independent audio files which are supposedly posted on the City's website.  This failure to post audio files also happened for the December 9th meeting and the video files were long delayed.  While it's certainly helpful to have DVD's available at City Hall soon after (and staff has gotten better at this), it's not sufficient for the reasons described below.

Other reporters than I ignored your rule on January 13th and placed recorders where we could actually get a recording.  Ironically this violated  your "decorum" rules, but perhaps because it was done by a number of reporters (including the mainstream media), my device was not confiscated.  On this occasion, I was not ordered out of the room nor arrested, nor had my machine confiscated (as was regularly the case in the last year).  Note, though,  that neither I nor the other reporters requested permission from you; nor did you offer it--to perform a constitutionally protected activity.

I was able to make a recording of the sections of the meeting that could not be heard by those not present and those forced to wait outside.  This could be useful to those seeking access to the half hour or so missing from your official record.  I've so advised the City Clerk that if anyone wants to, they're welcome to check out that audio segment at http://radiolibre.org/brb/brb150118.mp3  (49 minutes into the audio file).
There may be staff equipment failures and personnel oversights at Council. City technicians may have difficulty posting audio on the  internet problems afterwards,. The Mayor may turn of the recording of the meeting as has happened in the past. But even if none of this occurs, it is the right of the public, particularly the media, to make their own audible complete recordings at Council meetings.  We are not required to rely on the "official version".

Your system also does not make the best recording of those who address the Council and public with their back turned to the Council (a dramatic if critical  free speech message in itself).  The public has a right to hear those words, said during the Oral Communications period.  You yourself acknowledged the speaker's right to choose their own posture and facing. You noted that the "face the Council and speak into the official equipment" rule was not intended to be enforced on threat of exclusion or arrest (Councilmember Mathew's wishes not withstanding). The media has the right to record the words of such a speaker particularly if your equipment doesn't pick them up fully.

This clearly can't be done effectively from your side-of-the-room Press Box area, whether the speaker system is working or not.  We cannot predict who will turn their back on a Council that has been the subject of much anger and criticism recently.  So if we were to leave our devices in your designated area, we might well be forced to miss something said by a speaker who chose not to speak directly into your system.

There's another concern. To claim it's disruptive to place an unattended recorder anywhere in the room other than at your designated spot is simply false by any reasonable definition of “disruptive”. Business is not stopped. The meeting is not delayed. Except if the chair chooses to delay it to repress the person recording.   Perhaps rarely someone can be "potentially distracting". This possibility however doesn't trump the First Amendment or the Brown Act requirements allowing independent recording.

Apparently to defend former Mayor Robinson's unreasonable and repressive rule, you have created a further unconstitutional rule that redefines "disruption" as a simple violation of the rules even if it is the Mayor himself who stops the meeting.  This new definition of disruption (which actually amounts to allowing the Council to claim there is a disruption when none factually exists) has been specifically rejected by  the 9th Circuit Court's en banc panel as I've noted in earlier correspondence.

In the past, this was an expensive lesson. It cost the City over $150,000.   It took 10 years.  Do we have to go through this again? To keep your rule and practice in line with the court ruling, please clarify that a Mayor's decision to stop a meeting for a “rule violation” will not be used to justify exclusion or arrest a member of the public actually disrupts it (i.e.stops its flow).

To reiterate, making the entire room a "forbidden zone" for leaving an unattended recorder also unduly burdens a reporter (or member of the public making a record) who wants to use the bathroom, read the agenda, speak to someone outside, yet maintain his own record of the meeting.  Having to relying exclusively on official recordings clearly violates the Brown Act's provision of the right to record independently.  Not the right to record via official channels, but the right to record, period.

As I have done in the past, I'm happy to continue to respect speakers at the podium and limit trips to the tape recorder close to the lecturn to moments when the podium is empty. 

Perhaps you have a concern that a recording device may pose a confusing problem for a staff member as to whether it's "attended" when it sits without a person nearby. To clarify, I'd be happy to attach a note stating "this machine is being attended; please leave it where it is until reclaimed by the reporter".

Please respect my right to record.  Please assure me this will be the case at the next Council meeting.

If you have any other concerns, please contact me,

Robert


CITY CLERK'S RESPONSE TO MY REQUEST FOR ANY COMPLAINTS RE: MY AUDIO RECORDING ACTIVITY

From: npatino [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Wed, 21 Jan 2015 17:52:11 -0800
Subject: Public Records Request Response
January 21, 2015
rnorse3 [at] hotmail.com

Mr. Norse:
This email is in response to your public records request addressed to the City Clerk’s office, requesting information from the City of Santa Cruz as detailed below. Your request was received by the City via email on January 12, 2015.
Requested Records:

“Nydia, Regarding the Decorum Changes proposed in the 1-13-15 City Council Agenda (Item #12). Please make available any documents that involve complaints, concerns, or information referencing obstructing city council aisles, members of the public placing furniture, recording devices in the chamber, and/or concerns about Council “disruptions” from 1-1-14 through the present.”

We have no disclosable public records that are responsive to your request.

Nydia Patiño
Records Coordinator City of Santa Cruz (831) 420-5034