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February 10, 2015

The Honorable Senator Michael Kehoe


Missouri Senate
201 W Capitol Ave., Rm. 429
Jefferson City, Missouri 65101
Re:

Videotaping Senate Commerce Committee Meeting

Dear Senator Kehoe:


I am writing regarding videotaping of Senate Commerce Committee meetings. You stated on
February 3, 2015 that videotaping of these meetings is only allowed for member[s] of the
Missouri press corps with previous permission. This restriction violates Missouris Sunshine
Law. In addition, to the extent the Committee is making membership in a private organization,
such as the Missouri Press Association, a condition of videotaping these meetings, this
restriction violates the First Amendment and our free speech rights under the Missouri
Constitution.
On February 2, 2015, a representative of Progress Missouri sent a courtesy email to you, to
notify you of our intent to videotape the next Senate Commerce Committee meeting. The
e-mail cited Section 610.020, R.S.Mo., which states that a public body shall allow for the
recording by...videotape...of any open meeting. The e-mail also requested any guidelines for
recording the meeting to minimize disruptions.
On February 3, 2015, Adam Gresham telephoned us and stated that we would not be able to
collect video at the meeting. He did not explain how he thought our efforts to videotape the
meeting could possibly be disruptive. Nor did he offer any steps we could take to minimize any
possible disruptions.
Notwithstanding the statement by your Chief of Staff, we attended the Commerce Committee
meeting on February 3, 2015. At the start, you announced a housekeeping matter. At this
time, we were videotaping the proceedings. You stated:

The policy of the Senate, certainly the policy I'm going to adopt, is that if you're
a member of the Missouri Press Corps you can get with our office before the
meetings start. Certainly, Adam will work with you to allow videotaping. If you
need something other that you're welcome to get with Senate Communications
given to you certainly and you're welcome to attend any meeting that you want
to. But videotaping is only allowed for press corps members with previous
permission and Senate Communications. That will be the policy."
Your statement was a direction to us to stop videotaping. We are not members of the Missouri
Press Association, which is a private organization of reporters. Accordingly, we ceased
videotaping the meeting. Members of the Missouri Press Association may have continued to
record the proceedings, but we do not have access to their recordings.
Per Missouris Sunshine Law, it is the public policy of the state that meetings, records, votes,
actions and deliberations of public governmental bodies be open to the public unless otherwise
provided by law. Section 610.011.1, R.S.Mo. The law is to be liberally construed.
Id.
The Sunshine Law gives a broad right to record public meetings, and these rights are not limited
to reporters. Missouris Sunshine Law is absolutely clear on this issue.
Section 610.020 of Missouris Sunshine Law states: A public body shall allow for the recording
by audiotape, videotape, or other electronic means of any open meeting. A public body may
establish guidelines regarding the manner in which such recording is conducted so as to
minimize disruption to the meeting.
The Senate Commerce Committee is a public body, as defined by Missouris Sunshine Law. In
addition, the meeting on February 3 was a public meeting as defined by the Law. At no time
was our videotaping disruptive. We were quiet and respectful. We did not block or obstruct
anyones access or views and did not interfere with the proceedings. We conducted ourselves
in the same manner as we have conducted ourselves at other committee meetings, which we
have videotaped without issue. We also conducted ourselves in the same manner as members
of the press corps have conducted themselves in videotaping committee meetings. Nothing
about our efforts to record the meeting could be considered disruptive or would cause a
reasonable person to believe that our conduct would cause any disruption.
In the past, Senators have cited Senate Rule 96, which purportedly requires the permission of a
Chairman to videotape a committee meeting. But, the Senate cannot draft a rule, which is not a
law enacted by the General Assembly, to escape its obligations under the Sunshine Law. While
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the Senate may establish neutral guidelines to minimize disruptions at meetings, it cannot
create guidelines that completely defeat the law. A rule giving the Chairman blanket discretion
to withhold permission to record is also arbitrary and unlawful, and could be used to suppress
disfavored views for political reasons. Moreover, our efforts to videotape did not cause and will
not cause a disruption.
I also note that courts in other states have held that citizens and businesses have the right to
videotape public meetings, even if they are not members of the press.
See Tarus v. Borough of
Pine Hill
, 916 A.2d 1036 (N.J. 2005) (actions of mayor were arbitrary when it created
restrictions to block citizen from videotaping a public meeting);
Pinellas County School Board v.
Suncam, Inc.
, 829 So.2d 989 (Fl. Ct. App. 2002) (business has right to videotape public meeting).
We hope this letter resolves this matter. We will continue to send emails to your staff regarding
our attendance at meetings as a courtesy, when possible.
If you intend to prevent us from videotaping Committee meetings, please inform us with your
basis for doing so. We reserve the right to take legal action, including seeking an injunction. In
case of legal action, we will consider your actions to be knowing and purposeful violations
for purposes of the Sunshine Law, and will seek costs and attorneys fees incurred in protecting
the publics right to videotape Committee meetings.
Thank you for your cooperation in this matter. I look forward to hearing your response.
Sincerely,

Sean Soendker Nicholson


Progress Missouri

Cc:

Senator Tom Dempsey, President Pro Tem of the Senate


Senator Ron Richard, Majority Floor Leader
Senator Joseph Keaveny, Minority Floor Leader
Chris Koster, Missouri Attorney General
Chris Grant, Schuchat, Cook & Werner
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