April 23, 1974

THE HONORABLE JAMES T. EDMUNDS
Member, Senate of Virginia

73-74 457A

I am in receipt of your recent letter in which you make inquiry regarding the applicability of the Virginia Freedom of Information Act and the Constitution of Virginia to a rule adopted by a county board of supervisors which prohibits the use of recording devices during open meetings of the Board of Supervisors.

I am enclosing herewith an opinion of this office to the Honorable Jose R. Davila, Jr., Commonwealth's Attorney of the City of Richmond, dated April 11, 1972, found in the Report of the Attorney General (1971-1972), p. 56, which is relevant to your inquiry. That opinion held that §2.1-343, Code of Virginia (1950), as amended, which provides that all meetings of public bodies shall be open meetings, except as otherwise provided by law, creates no vested right to televise, photograph or record the transaction of public business at such meetings.

It should, furthermore, be noted that §§15.1-539 and 15.1-810 authorize local governing bodies to make such rules and take such measures as are determined to be necessary for the maintenance of orderly proceedings in the transaction of public business. See the opinion of this office to the Honorable John S. Hansen, Member, House of Delegates, dated October 11, 1967, and found in the Report of the Attorney General (1967-1968), pp. 45-46, a copy of which is enclosed.

While a prohibition against the use of recording devices in public meetings is not a direct restriction upon First Amendment rights of free expression, there may be an indirect or collateral impact upon such rights (see Davila opinion, supra). To the extent that a rule prohibiting the use of recording devices at public meetings collaterally affects First Amendment rights, there arises a requirement that the county board of supervisors justify the necessity of such a rule by showing that it is necessary for the maintenance of orderly proceedings.

In view of the foregoing, I am of the opinion that a county board of supervisors may prohibit the use of recording devices in public meetings insofar as it can be shown that such a prohibition is necessary to the maintenance of order in the proceedings of the board as it conducts public business; in the absence of this showing, no such rule is enforceable.