Request By:
Mr. Rich Gimmel
News Director
WTVQ Inc.
P.O. Box 5590
Lexington, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You wrote that the Jessamine County Fiscal Court voted to prohibit a news crew from your station, WTVQ, from photographing fiscal court proceedings. The action was taken by the magistrates during a public meeting which was being held in accordance with the Kentucky open meetings law.
There was no stated purpose for their action, except that one of the magistrates insisted that he not be photographed during the meeting. Thinking they were right in doing so during an open meeting of this kind, your crew continued to photograph until the vote was taken.
Your question: Was this particular action legal, and under what circumstances may a public body prohibit news photographs during a public meeting?
Of course the open meetings law applies to fiscal courts under the definition of "public agency" as set out in KRS 61.805.
The statute having a precise application to this situation is KRS 61.840, which reads:
"No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency.
"No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting. "
The philosophy underying the open meetings law is to bring out into the open, for the daylight scrutiny of the public, meetings of public agencies such as a fiscal court. In simple essence this means that the public can observe just how the public's business is being carried on. Effective public observation is expressly called for in the statute just cited, subject only to what is feasible.
KRS 61.840 expressly provides that all agencies shall permit "news media coverage" , including but not limited to recording and broadcasting. This obviously includes photography for television.
Now, you ask whether the Jessamine Fiscal Court vote to stop your TV photography was legal. Assuming that the only reason advanced was that a particular member of fiscal court did not want to get on TV, it is our opinion that the fiscal court's action in this regard was not legal. The permitting of such news media coverage of a public meeting is indeed mandatory. The statute says "all agencies shall permit . . ." (Emphasis added). Under KRS 446.010(29), the word "shall" is construed as mandatory, unless the context provides otherwise. Here the context does not provide otherwise. In fact this principle that "shall", as used in a statute, is generally construed as being mandatory, was recognized in the case law before it got into the statutory law.
Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967) 390.
So it must be understood that a fiscal court, or any public agency holding an open meeting as required by KRS 61.805 et seq., cannot prohibit news media coverage on some arbitrary ground. Section 2 of the Kentucky Constitution expressly prohibits arbitrary action. Further, it must be borne in mind that the only condition which may apply to the attendance of any member of the public at any meeting of a public agency must relate strictly to a condition or conditions required for the maintenance of order.
Thus, in answer to your second question of under what circumstances may a public body prohibit news photographs during a public meeting, it is our opinion that such prohibition would be legal only where the facts definitely indicate that such prohibition was required to maintain order. Under the facts given, there is no showing that the prohibition was necessary to preserve order. The subjective and adverse reaction on the part of individual members of a fiscal court or similar body to TV photography, standing alone, is basically unrelated to the maintenance of order. In simple language, the personal dislike, on the part of public body members, of TV photography of themselves in action has nothing to do with the proper maintenance of order.
The American public has discovered, even without relying upon Professor McLuan's observations, that the TV camera exposes a new dimension in the depicting of reality. But, notwithstanding the candid character of the TV camera, the legislative policy to expose the utter reality of what goes on in a public meeting of this kind is of transcendent significance.