Saul Qersdyn of NJFOG and Lee Dorry of Essex Watch brought their video cameras to the Nutley Zoning Board’s August 17 meeting. The following post reflects their account of discussion with the board’s attorney. -NJFOG
by NJFOG and Essex Watch
Nutley, NJ — Two video cameras ran at the August 17 meeting of the Nutley Zoning Board, which on May 18, with no camera on them, adopted a resolution with stringent guidelines for the activity.
The Township’s Planning Board adopted a similarly restrictive policy on August 5 and attempted to immediately enforce it by requiring two men who were already filming to sign a statement agreeing to the new terms. Both men — NJFOG board member Saul Qersdyn and Essex Watch founder and Nutley resident Lee Dorry — refused. The board then re-located its meeting to an adjoining conference room, requiring the men to move their camera equipment, a violation of the new rules that could have resulted in equipment being confiscated had the board sought to enforce its policy.
The two men were breaking no laws, though. Citizens can, indeed, video-record a public meeting. The New Jersey Supreme Court ruled in 2007 that it’s a common law right. A public body may set reasonable guidelines but cannot disallow or overly restrict the activity.
As written, the guidelines set forth by Nutley’s Zoning and Planning Boards could prevent you from video-recording if you arrive late to a meeting, move your equipment during a meeting, or even use a better microphone to capture discussion. Officials could take away your camera if you do, keep it for as long as they like, and make you forfeit your right to film any future proceeding.
We would argue that these terms are not reasonable, nor do the boards have policing powers that would give them this authority.
So Qersdyn and Dorry brought their cameras to Town Hall again on August 17 to see if they would be allowed to video-record the Township Zoning Board meeting without unreasonable restriction.
Qersdyn arrived early, ahead of Dorry, and was approached by Zoning Board attorney Diana McGovern, who handed him the Video Recording Agreement and said, “I just want to give you our guidelines. You don’t have to sign them. If you could just give us your name so we know who’s in the room.”
Qersdyn asked her if everyone in the audience would be asked to give their name.
McGovern continued that the filming agreement was following New Jersey Supreme Court guidelines as to what is required in courthouses, claiming that the Zoning Board meeting was a quasi-judicial setting where every case was a little case that could be appealed to the Supreme Court.
McGovern added that she did not believe Qersdyn would be disruptive but that “it’s to keep decorum because we don’t want to intimidate anybody who wants to get up and say something.”
Qersdyn later stated that though he knew it was not the case in Nutley, to make someone sign the agreement might itself be perceived as intimidation.
She assured him that his equipment was not going to be taken from him but stated the police would be called were someone to be disruptive and that was the case whether someone were filming or not.
Well-versed in public advocacy, Qersdyn asked what the compelling reason is for someone attending a public meeting to give their name.
McGovern took the stance, said Qersdyn, that the person videotaping is providing a service and could be contacted for the video in the event of a dispute involving the board.
However, aside from it being unreasonable to expect public attendees to make their personal records available, presumably for free, to anyone who asks, doing so would violate the board’s own policy, which states, “No action shall be taken by the person responsible for the recording that might lead the public to believe that the recording is to be considered an official transcript of the meeting.”
Dorry later advised NJFOG that if the board wants to have video footage of their proceedings available in the event of a legal dispute, they have at their disposal $17,000 worth of camera equipment already installed in the commission chambers.
Qersdyn had McGovern confirm that the board keeps minutes and also audio records its meetings. These resources, he said, could be obtained via an OPRA request to get the names and addresses of witnesses who speak at the meeting. McGovern agreed but noted that the camera could make someone uncomfortable to get up and speak. That is not sufficient reason to infringe on the right to video-record according to the decision in Tarus v. Pine Hill, said Qersdyn, noting that he would be filming people from the back.
McGovern ended the conversation by stating that there are many reasons why somebody might want to know who he is but none that required him to give his name.
When Qersdyn introduced himself as a member of NJFOG, however, McGovern admitted she already knew who he was – she’d gotten word.
Qersdyn thanked her for the open discussion and stated that NJFOG had no vested interest in any of the proceedings but were there simply to ensure that a citizen’s right to video-record was not infringed upon or unreasonably restricted.
Dorry arrived sometime after their conversation ended. McGovern simply handed him a copy of the recording agreement and told him he did not have to sign it. “She did not ask me to identify myself,” said Dorry.
Thereafter, Zoning Board business proceeded in the normal course with the cameras running. The board chairman even made a point during the proceedings to ask applicants to hold their plans and drawings in front of the cameras for the benefit of any viewers.
Board attorney Diana McGovern had commented earlier to Qersdyn that she wished someone had approached the board sooner with any concerns about the filming guidelines, and the chairman stated during the meeting that Nutley’s governing body is in the process of revising them.
The New Jersey Foundation for Open Government welcomes this opportunity to work in cooperation with Nutley Township officials to develop a set of reasonable guidelines for filming the Township’s public meetings. NJFOG and Essex Watch believe that such a partnership would be in the best interest of government and the public it serves.
The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving New Jersey’s Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) and working to educate the public about these laws and increase governmental compliance.
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