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Memorandum of Law - Documenting

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Interactions with Government Officials, Government Business in Any Public Forum and the Acts and Conduct of Public Officials Engaged in Their Official Duties

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A person involved with any official government business, including child abuse or neglect investigation and/or court case, has the right to document all interactions which occur between that person and any government official, as well as any other activities conducted by government personnel during the course of their official duties. Furthermore, they may also document all interactions with persons who will be providing reports, testimony or recommendations about the individual or his or her children either to the government agency or the court. This documentation can be accomplished by audio recording, video recording, having witnesses present, note-taking and drafting and sending follow-up letters. Since these interactions and government activities will form the basis of reports and recommendations concerning the person and his or her family, it would be unreasonable to prohibit any documentation efforts by an affected person, their advocates and court watchers. Any video or audio recording which is done openly, with the recording device in plain view, whether all parties have been advised that recording is taking place or not, is lawful and does not invade privacy. If a person, upon seeing the recording device does not wish to be recorded, their recourse is to leave the area and/or not participate in any conversation. Various states allow that only one party to the conversation give consent for recording, and in these circumstances, surreptitious audio recording is permitted. In most jurisdictions, video recording (no audio included) of anything visible to the general public is permitted without permission. PRIVACY Documentation by video or audio recording in public is no more a violation of anyone’s privacy than is writing down exactly what that person was doing and/or saying, with the singular exception that a video or audio recording is going to be much more accurate and unbiased than any written account. On the public street, or in any other public place, the plaintiff has no right to be alone, and it is no invasion of privacy to do no more than follow him about. Neither is it such an invasion to take his photograph in such a place, since this amounts to nothing more than making a record, not differing essentially from a full written description of a public sight which anyone present would be free to see. Daily Times Democrat v. Graham, 162 So. 2d 474 (Ala, 1964). This principle also extends to recording and photo documentation which occurs in by a resident in their own home. A government official conducting official business inside an individual’s residence or property has no expectation of privacy and therefore, can make no objection to any form of documentation of their official acts. Indeed, such objections or refusals to perform their duties make their motives and conduct highly suspect.

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Neither is discreet or unobtrusive recording generally disruptive to any official proceeding. Any public official who has nothing to hide should have no objection to having his or her official acts documented in any fashion.

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As applied:

Expectation of Privacy What a person knowingly exposes to public, even in home or office, is not protected by Art.II sec. 7, Colo. Const. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972). People v. BcGahey, 179 Colo. 401, 500 P.2d 977 (1972). A person does not have to seek the permission of a person in a public place prior to filming or recording them because the courts have consistently ruled that there is no expectation of privacy in a public place. “Where an individual’s picture is taken on the public streets, or in a public place such as a courtroom or a sporting event, the courts have refused to consider the taking as an invasion of privacy.” Phillip e. Hassman, Annotation, Taking Unauthorized Photographs as Invasion of Privacy, 86 A.L.R. 3d 374, 375 (1978) (emphasis added). Capturing a conversation in a public area where the speakers had no reasonable expectation of privacy is not eavesdropping. Hornberger v. ABC, 799 A.2d 556 (broadcaster’s use of hidden camera to surreptitiously record police stop and search of car did not constitute eavesdropping because police officer making a stop on a busy public highway had no reasonable expectation of privacy. If communication by the speaker is not intended to be private, there is no eavesdropping. Privacy is determined by a) the location of the communication b) the status of the persons involved, whether they are private individuals or public officials. There is no invasion of privacy liability for observing a person or even taking his photograph while is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Comment (c) to section 652B of the Restatement (Second) of Torts (1976).

No invasion of privacy where photograph of couple was taken without their consent at Miami Airport, a place open to the general public. Fogel v. Forbes, Inc. 500 F. Supp. 1081 (E.D. pa. 1980). No invasion of privacy where filming of interior of pharmacy recorded nothing more than what any passerby would have seen. Mark v. King Broadcasting Co., 618 P.2d 512 (Wash. 1980). No invasion of privacy for video surveillance of individual’s commuting patterns. Munson v. Milwaukee Bd. Of School Directors, 969 F.2d 266 (7 th Cir. 1992). GOVERNMENT BUSINESS The business of the state is open for public scrutiny under the Colorado Open Records Act, C.R.S. 24-72-201 & 202.

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Court hearings are open to the public with very few instances where a court hearing would be closed, and then, only for good cause, and only when supported by evidence. C.R.S. 27-72-301. Court hearings are required to create a verbatim record of proceedings C.R.S. 13-6-309. Likewise, most court documents for cases that are open to the public are also available to the public under the Open Records Act.

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Legislative sessions, executive and administrative and municipal agencies and board meetings are similarly open to the public under the Sunshine Law C.R.S. 24-6-401 & 402, and are frequently documented with official audio or video recordings of the proceedings. This has never precluded the right of anyone attending to create their own visual or audio recording. Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise “illegitimate.” See, e. g., Hudson v. Palmer, 468 U.S. 517 (1984); Rawlings v. Kentucky, 448 U.S. 98 (1980). To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is “prepared to recognize as legitimate.” Therefore, any official activity by any government employee or government official who is elected or appointed is not protected under the Fourth Amendment or privacy considerations. The law applicable to the question, “which unequivocally and repeatedly has stated that when one becomes identified with an occurrence of public or general interest, he emerges from his seclusion and it is not an invasion of his “right of privacy” to publish his photograph or to otherwise give publicity to his connection with that event. The law does not recognize a right of privacy in connection with that which is inherently a public matter. Numerous cases are available on the subject and I have found no disagreement as to the law.” Berg v. Minneapolis Star & Tribune Co., 79 Fed. Sup. 957. Metter v. Los Angeles Examiner, 35 Cal. App. (2d) 304, 95 Pac. (2d) 491; Jacova v. So. Radio & Television; Co., (Fla.) 83 So. (2d) 34. Jones v. Herald Post Company, 230 Ky. 227, 18 S.W. (2d) 972; Humiston v. Universal Film Mfg. Co., 178 N.Y.S. 752. Smith v. Doss, 251 Ala. 250, 37 So. (2d) 118. Elmhurst v. Pearson, 153 F. (2d) 467. Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E. (2d) 485. Ettore v. Philco Television Broadcasting Corp., (D.C. Pa. 1954) 126 F. Supp. 143.” Quoting In re Hearings Concerning Canon 35 of Canons of Judicial Ethics, 296 P.2d 465, 132 Colo. 591 (Colo. 02/27/1956)

Public Officials A person, acting in his or her official capacity as a representative of any branch of the government, has no expectation of privacy in the performance of their duties. Their very status as a public official, be it caseworker, judge, court appointed Guardian ad litem (who, as a quasi-judicial officer, is conducting the business of the court in the name of the court), or other public official, is tantamount to an implied consent to inform the general public by all legitimate means regarding her or her activities in the discharge of his or her public duties. What is a public official? “It is our opinion that the [officer] is within the ‘public official’ classification. . . . his duties are 3

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peculiarly ‘governmental’ in character and highly charged with the public interest....” Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837 (1968)

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[To] qualify as public officials under the test of Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), they must “have or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs,” id. at 85, 86 S. Ct. at 676, and their position “has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees....” Id. at 86, 86 S. Ct. at 676. He possesses both the authority and the ability to exercise force. Emphasis added. Misuse of [official] authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. That there is a strong public interest in ensuring open discussion and criticism of [a public official’s] qualifications and job performance are integral in determining whether or not a person is a public official. Gray v. Udevitz, 656 F.2d 588 (10th Cir. 08/07/1981). Emphasis added. As applied to: Police: Cassidy V. American Broadcasting Companies, Inc. 377 N.E.2d 126 (Ill. App. Ct. 1978); State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992); “By accepting his public position [the police chief] has, to a large extent, relinquished his right to keep confidential activities directly relating to his employment as a public law enforcement official.” State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983); “. . .misuse of authority can result in significant deprivation of constitutional rights and freedoms, not to mention bodily injury and financial loss. . .The public therefore has a valid interest in the [officer’s] qualifications and on-thejob behavior. . .[I]n light of a[n officer’s] empowerment to substantially affect the lives of the general public, [his] position invites public scrutiny. . .” Tomkiewicz v. Detroit News, 635 N.W.2d 36 (Mich. 2001) quoting Gray v. Udevitz, 656 F.2d 588 (10 th Cir. 1981) School principal: Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988) Deputy sheriff: St. Amant v. Thompson, 390 U.S. 727, 730 & n.2 (1968) FBI agent: Price v. Viking Penguin, Inc., 881 F.2d 1426, 1431 (8th Cir. 1989) NO EXCEPTION FOR COURTS By definition, a judge and any officer of the court is a public official subject to the same scrutiny as any other public official. The judicial canon referring to expanded media coverage in courtrooms is not relevant to circumstances wherein a member of the public wishes to create their own recording of court proceedings for their own purposes. At the time this canon was devised for media coverage, audio and video recording devices were bulky and cumbersome and private ownership of these devices was rare. By way of background: 4

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“Over the past 50 years, some criminal cases characterized as ‘sensational’ have been subjected to extensive coverage by news media, sometimes seriously interfering with the conduct of the proceedings and creating a setting wholly inappropriate for the administration of justice. Judges, lawyers, and others soon became concerned, and in 1937, after study, the American Bar Association House of Delegates adopted Judicial Canon 35, declaring that all photographic and broadcast coverage of courtroom proceedings should be prohibited. In 1952, the House of Delegates amended Canon 35 to proscribe television coverage as well. 77 A. B. A. Rep. 610-611 (1952). The Canon's proscription was reaffirmed in 1972 when the Code of Judicial Conduct replaced the Canons of Judicial Ethics and Canon 3A (7) superseded Canon 35. E. Thode, s to Code of Judicial Conduct 56-59 (1973). Cf. Fed. Rule Crim. Proc. 53. A majority of the states, including Florida, adopted the substance of the ABA provision and its amendments. In Florida, the rule was embodied in Canon 3A (7) of the Florida Code of Judicial In February 1978, the American Bar Association Committee on Fair Trial-Free Press proposed revised standards. These included a provision permitting courtroom coverage by the electronic media under conditions to be established by local rule and under the control of the trial judge, but only if such coverage was carried out unobtrusively and without affecting the conduct of the trial. The revision was endorsed by the ABA's Standing Committee on Standards for Criminal Justice and by its Committee on Criminal Justice and the Media, but it was rejected by the House of Delegates on February 12, 1979. 65 A. B. A. J. 304 (1979). In 1978, based upon its own study of the matter, the Conference of State Chief Justices, by a vote of 44 to 1, approved a resolution to allow the highest court of each state to promulgate standards and guidelines regulating radio, television, and other photographic coverage of court proceedings.” Quoting Chandler et Al. v. Florida, 1981.SCT.40466; 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740, 49 U.S.L.W. 4141 (01/26/81).

Recording equipment took up significant room within a courtroom and required a professional to operate them. Changing a tape or film was potentially disruptive to the court process due to the complicated processes involved. Hence, the need to control media equipment access was predicated upon the need to protect the decorum of court proceedings, not upon any claim that the information disclosed during those proceedings could not be collected, utilized or disseminated. However, it is significant to note that the provisions governing expanded media coverage only apply to the media. There are no provisions which apply to the general public regarding verbatim documentation of court proceedings. Consequently, each judge adopts his or her own rules governing the use of unobtrusive or discreet image capturing and audio recording devices in their own courtrooms by the general public. This has resulted in great inconsistency from one courtroom to the next governing the use of discreet audio or video capture equipment.

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NO SPECIAL PRIVILEGE FOR MEDIA The press is not entitled to treatment different in kind than the treatment any other member of the public may be subjected to. Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

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THE PUBLIC NEED FOR ACCURATE VERBATIM RECORDS OUTWEIGHS ANY GOVERNMENT INTEREST IN SUPPRESSING THE PUBLIC’S ABILITY TO DISCREETLY AND ACCURATELY DOCUMENT THE BUSINESS OF THE COURT To allow media to document court cases by recording but prohibit the public from recording bestows unwarranted special privileges to the media. If the public interest is greater than the media interest, there should be no obstruction to allowing the public to use the same methods and tools to document official acts and conduct as the media has been granted. Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the dissemination of information obtained about their official conduct by choreographing which news organizations or members of the public have first hand access to relevant information. “A person singled out for exclusion from the courtroom, who is thereby barred from first-hand knowledge of what is happening there, moreover, is placed at an extraordinary disadvantage in his or her attempt to compete in the ‘marketplace of ideas’ about the conduct of judges and the judicial system.” Cf. Anderson v. Cryovac, Inc., 805 F. 2d 1, 9 (1st Cir. 1986) There is a growing grassroots activism called “court watching.” Court watching is a form of public participation protected by the first amendment. The court watch movement has been born out of the public’s concerns over the way business is conducted in the courts of this country. It is based on the growing awareness of judicial and prosecutorial abuses, unfettered violations of rights and laws, bias, corruption, cronyism and the use of the people’s courts to implement personal agendas or to increase the personal fortunes of certain unethical officers of the courts. The mission of these watchdog groups and individuals is to inject credible and meaningful public scrutiny into our courts, and to document and expose court-related abuses in an effort to secure sanctions and convictions against violators. Their sole desire is to insure that our courts are not pro-forma arenas catering to special interests, bias or power, or used to exploit the helpless, but are equally accessible and fair to all and operating fully within constitutional restraints. However, time has proven that their efforts to expose these abuses and insure the integrity of our courts have been thwarted at every turn. Co-workers and court support staff are afraid to blow the whistle for fear of retaliation or losing their jobs. Local prosecutors will not prosecute judges or fellow attorneys. State oversight commissions will not sanction offenders. Federal law enforcement agencies demand more evidence than personal statements before conducting their own investigations. The media will rarely investigate claims of court abuses. The word of one or many court watchers has proven insufficient against the word of a

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judge or a lawyer. This problem is exacerbated by the fact that the judges and lawyers all stick together, and court watchers face formidable odds when it comes down to “he said, she said” situations. Court watchers themselves frequently become the victims of unbridled retaliation, defamation and violations of rights for having the temerity to continue their public participation and exposure, compounding the perpetration of court abuses upon a trusting public. Consequently, public confidence in our judicial system is at an all-time low. But the situation gets worse. One would think that the verbatim record of the proceedings in question could provide valuable evidence to support court watcher claims. However, it has become obvious that if court officers are willing to commit offenses against the interests of justice, they also have no qualms about altering, concealing or destroying any evidence of those acts. To their shock and horror, court watchers nationwide have discovered altered court files and altered or even missing court recordings and transcripts. The backup they relied upon to support their claims have proven to be unreliable. Once again, their efforts to rely on the protections afforded by the system have been critically undermined by those who administer the system. This potential for corruption is recognized by the highest court of our land in Near v. State of Minnesota ex Rel. Olson, 283 U.S. 697 (1931):

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. . . the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. Many court watch groups and individuals, having exhausted all available remedies, have determined it is necessary to take the next logical step. To create their own verbatim record of the proceedings they are observing with their own recording devices. In a court situation, a judge and all employees and officers of the court are public officials, to whom attaches no expectation of privacy. A person, whether a party to the case or a member of the public, has the right, and even the duty to document any court hearing which is open to the public in whatever manner is most useful to him and which does not disrupt the business of the court nor interfere with proper decorum. If private note taking, private verbatim transcribing with shorthand or a transcription machine or laptop computer is permissible, so should unobtrusive and discreet audio or video capture of the same proceedings be permissible. Written documentation is frequently insufficient, due to its inherent failing to accurately document tone of voice or body language. Documentation should be allowed through non-disruptive recording by any party or member of the public present in the gallery. There is no expectation that this private recording would be considered an official record by any means. However, especially in situations where the official record could be altered or is missing, a private recording would document the proceedings sufficiently to support any resultant claims and investigations. Recording would also assist a party in the preparation and presentation of his case and help to insure compliance with court orders. This is especially critical in child welfare cases Finally, recording would sufficiently document the hearing to meet the unofficial needs of

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the individual without the delay and burden of expensive, official transcripts. Today, audio and even video recording devices are so small, so simple to operate, so discrete and affordable that virtually everybody owns at least one. These devices range from hand held to smaller than a quarter. With the larger ones, changing a cassette tape is so quiet and unobtrusive that a court would be hard pressed to even detect the changing of a tape during a proceeding. In most instances, such tapes could be changed during breaks and the court would never even know a recording of the proceeding was being made. This would be no more disruptive than a person taking notes or typing on a laptop or the court reporter transcribing the hearing. Indeed, many courtrooms use their own tape recording devices and the proceedings are routinely disrupted to change the official tape. But should a court unreasonably find that a handheld cassette tape recorder is “disruptive,” there is no way it could find a digital recorder disruptive. These devices, held in hand, are less disruptive than a person holding a pad and pen. Set on a table or lap, or inserted into a pocket, their functioning is virtually undetectable. They offer less distraction than filling a glass from ubiquitous pitcher of water. There is no substance behind any claim that a digital recording of court proceedings would be disruptive, therefore, there exist no more valid grounds to prohibit the public from capturing digital recordings of hearings than there is to prohibit note-taking during proceedings.

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CONCLUSION Courts are open to the public, therefore, there is no expectation of privacy during a court proceeding. Judges, District Attorneys and officers of the court are public officials who have waived any expectation of privacy by virtue of accepting their office. Their official acts and conduct are subject to unfettered public observation, documentation, review and criticism. Court watching is a public participation activity protected by the first amendment. The media cannot be afforded special privileges unavailable to the general public. The sole reason for the judicial canon restricting recording was based on the intrusion of the recording devices into court decorum. That reason is no longer relevant. Judges cannot impose unfair, unreasonable or proprietary restrictions on the unobtrusive documentation of their conduct and official business. Public scrutiny and documentation of child protection agency and court proceedings is always in the best interests of the child. The canon limiting expanded media coverage does not apply to the discreet, and even undetectable recording of court proceedings by any member of the public in a courtroom, whether they are a party to the case or a member of the public seated in the gallery. If the court is unaware that any recording is being created during a hearing open to the public, by whatever legal means, the court has no discretion to prohibit the recording or punish the person creating that recording.

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