**This post was written by my colleagues Kristina Wilson and Phil Dixon. You can reach Kristina at Wilson@sog.unc.edu and Phil at dixon@sog.unc.edu
When and how can state and local government officials and employees record government meetings or their interactions with citizens? Does it matter if the recording is done openly or secretly? Recording may be tempting, particularly where there is a controversial matter at issue. The ability to record can be a useful tool, but there are several laws that government actors need to know if they want to use this tool legally and effectively. This post focuses on the issues surrounding government officials and employees recording oral communications outside of the law enforcement context. A later post will examine the issues surrounding video recording.
Secret Recordings and Criminal Law
State law permits a person to record conversations to which they are a party. G.S. 15A-287(a); see also 18 U.S.C. 2511(2)(d). This “one-party” consent rule means that secret recordings only become problematic when the person recording is not party to the communication being recorded. The law also prohibits the knowing disclosure of communications obtained in violation of these rules. There are a host of exceptions, including for legally authorized wiretaps, operators of electronic communications services and radio, and other transmissions available to the public (among others). Apart from those exclusions, it is a class H felony to record the communications of others without the knowledge and consent of at least one party to the communication. This rule applies even to spouses within the marital home. Kroh v. Kroh, 152 N.C. App. 347 (2002).
Rooted in prohibitions on wiretapping, state law makes it a crime to willfully intercept or attempt to intercept “any wire, oral, or electronic communication.” G.S. 15A-287(a). These terms are defined in G.S. 15A-286. Recording or otherwise intercepting any electronic or wire communication without a party’s consent is forbidden regardless of whether the parties intended their conversation to be confidential. When it comes to oral communications—words spoken in person—the ban on secret recording only applies when the speaker has a reasonable expectation of privacy in light of the circumstances surrounding the communication. In other words, the speaker must have a subjective expectation that the communication would be private under circumstances where it would be objectively reasonable to expect privacy. Thus, recording a loud conversation between others at your local food court or ballgame would not violate the law, while placing a secret recording device to record a closed-door meeting between others when the person recording is not present would be illegal.
This rule for oral communication tracks with Fourth Amendment protections for communications, where the content of the communication is only protected insofar as the speaker has a reasonable expectation of privacy in the conversation. Government agents and officials generally cannot listen to or record a person’s private phone call without a court order or search warrant. Katz v. U.S., 389 U.S. 347 (1967). On the other hand, a person does not generally have a reasonable expectation of privacy in what they say to another person, as the speaker there assumes the risk that their communication to another may not be kept private. Id. at 361.
These basic rules not only apply to state and local government officials, but government officials are subject to heightened penalties for violations. Under G.S. 15A-287(g), if a public officer knowingly records a conversation without the consent of at least one party to the communication, they must be removed from office and banned from holding any elected or appointed public office forever more (in addition to the criminal penalty). When the government official is party to the conversation, the statute does not prohibit the secret recording of communications and interactions with others, but such practice would raise other legal and practical concerns, as discussed further below.
Open Meetings Law
The open meetings law specifically allows “[a]ny person” to “photograph, film, tape-record, or otherwise reproduce any part of a meeting required to be open.” G.S. 143-318.14(a). Local governments can regulate the placement of recording equipment to avoid undue interference with meetings, but otherwise any attendee—members of the public, government employees, and government officials alike—is permitted to record open, official meetings of public bodies.
Additionally, this section permits local government bodies to record their own meetings. In fact, Section 143-318.10(e) notes that minutes can take the form of audio or audio-visual recordings for both open and closed session minutes and general accounts. G.S. 143-318.10(e). Recording open meetings does not implicate the criminal or constitutional protections against secret recordings, because a person (including a government official) does not have a reasonable expectation that communications at a public meeting will remain private.
With this legal framework in mind, let’s look at different recording scenarios.
Recording interactions with citizens
Local government actors may want to record interactions with citizens in situations outside of public meetings for several reasons– the recordings might help jog their memories about certain citizen requests and needs or serve as insurance against potential legal challenges. Is this legally permissible?
In short, yes. Just as a resident might secretly record their conversation with a government official, government officials may secretly record interactions with residents if (and only if) they are a party to the conversation. Recall too that for oral communications to be covered under G.S. 15A-287, the statement must be made under circumstances manifesting a reasonable expectation of privacy. Conversations between residents and government officials acting in their official capacities rarely implicate a reasonable expectation of privacy, except when the discussion references confidential or legally protected information. That said, there may be practical or political reasons to disclose that a conversation with a member of the public is being secretly recorded by the government official.
Government Recordings Will Often Become Public Records
One important consideration is that any recordings of interactions between a government official and a member of the public can be public records. Although there are many exceptions, the general rule is that any record in any form (including audio recordings) made or received by a government agency in the transaction of public business is a public record. G.S. 132-1(a). State and local government officials and employees are representatives of the government agency to which they belong. As a result, such recordings would be made by a government agency under the statute, which will typically mean the recordings qualify as a public record. Discussing public business with a resident also qualifies as the transaction of public business. Depending on the content of the discussion, a statutory exception to the law may apply. However, without an exception to the general rule for public records, a local government official or worker will be required to provide these recordings in response to a relevant public records request. (Note that law enforcement agency recordings like dash cam and body cam, perhaps the most common situation where a government official records interactions with a member of the public, are not public records under G.S. 132-1.4A.).
In addition to the obligation to produce these recordings, public records have retention requirements as well. That means local government officials and workers who have these recordings must be sure to retain them in accordance with the Department of Natural and Cultural Resources Retention Schedule. They should be stored with the rest of the agency’s public records and destroyed only as allowed by the Retention Schedule. Destroying these recordings or storing them improperly violates G.S. 121-5. The unlawful destruction or removal of public records in violation of that law is a class 3 misdemeanor. G.S. 121-5(b).
Some local government workers may want to use these recordings in place of personal notes, as a way to keep track of their interactions or jog their memories. In his 2010 Public Records Law book, David Lawrence argues that notes of this kind may fall outside the purview of the public records law, since they are personal documents written purely for the author’s benefit. However, there is no statutory exception for personal notes when those notes pertain to public business. Moreover, proving that such recordings are purely for the recorder’s benefit seems practically difficult, and the line between use for the recorder’s benefit and transacting public business seems perilously thin. The safest assumption is such recordings qualify as public records to be produced upon request.
Recording meetings
The open meetings law is clear that anyone can record open sessions of official meetings. What about closed sessions? The right to record in the open meetings law applies specifically to portions of meetings that are required to be open, so there is no explicit authority to record closed sessions. The open meetings law implies such a right by providing that recordings can serve as closed session minutes, presumably permitting the clerk to make an audio recording of the closed session for purposes of taking minutes. There is no specific authority allowing recordings of closed sessions by other people or for other purposes, and individuals may be taking a risk by doing so.
Does recording closed sessions without the consent of the other members of the body violate the criminal recording statute? It does not implicate the criminal or constitutional prohibitions on secret recording for one member of the body to record a closed session meeting in which they are a participant whether the recording is made openly or secretly. However, closed sessions exist to protect sensitive and often confidential information, including protected personnel matters, matters protected by attorney-client privilege, investigations into alleged criminal misconduct, and other sensitive matters. Recording or disclosing protected information obtained during a closed session could thus result in civil liability for the person recording or disclosing the information. At a minimum, such secretive action violates the spirit of and reason for closed sessions and may violate a governing board’s code of ethics under G.S. 160A-86.
Takeaways
Recordings may be practically useful, but there are some legal landmines that may be difficult to navigate. If government officials want to use recordings, they must be aware of a both the criminal and civil law implications.
This is particularly true where local governments want to implement video in addition to audio recording. We’ll cover that in Part 2 of this series. Stay tuned!