Say Cheese! The Tightrope of Public Accessibility

Key Takeaways

For many public employees, their work is indistinguishable from work in the private sector. Working at the county health clinic, at the IT service desk or as a legal assistant in the county attorney’s office may seem indistinguishable from doing the same work in the private sector. Even in departments that may not have a private sector analog, the employees may not consider the “public” nature of their work; they have customers just as any other business and an interest in providing high quality service. But we all must understand one of the unique aspects of work in the public sector: Public accessibility to our work.

When we first consider public accessibility, we may think open meetings and public record requests. Fortunately, employees involved in ensuring public meetings are open or responding to public records requests are trained on those aspects of their jobs, and they generally can get help from a supervisor, colleague or legal counsel when concerns arise.

But through the development of social media as a political tool, counties are becoming familiar with another aspect of public accessibility: When their officials or employees are on the other end of the cell phone camera.

Such a situation can come in any number of ways. On a national level, we see this most often in the form of cell phone videos by bystanders witnessing law enforcement encounters or sheriff’s deputies’ own dashboard or body cameras.  Also, private citizens often record public events or recognitions, sharing county news. And counties themselves are taking advantage of the opportunities provided by social media video to broadcast legislative news, success stories and public events. But there are other individuals who aren’t looking to promote county business and aren’t waiting to unexpectedly happen upon a problematic law enforcement interaction.

Rather, these individuals step into public offices, equipped with a camera, a YouTube channel and a point of view, seeking to record any public employee in the performance of their work or preferably, to record a public employee reacting very poorly to their video camera.

Generally, these recordings are not just legal, but are protected First Amendment speech. County officials cannot ban recording devices or require prior authorization to film in spaces that are open to the public.

The First Amendment protects filming matters of public interest, including government employees in public buildings. That First Amendment right is not entirely unlimited; after all, the right to film does not come with the right to violate the law or the right to interfere with public work or disrupt customers seeking assistance. Counties can place content neutral, “time, place and manner” limitations on filming in public buildings. These limitations must serve a sufficiently important governmental interest.

The need for and the reasonableness of any limitations are going to be considered on a case-by-case basis.

Thus, a blanket rule applying to all county buildings and spaces, even if the rule is content-neutral and limits only time, place or manner, is likely to be too restrictive. Consider the potential governmental interest of preventing disruption or interference with public employees’ work. Your county may have many different buildings that house the varied services it provides. Maybe one of your buildings is home to multiple departments, has a large lobby with a lot of through traffic to the upper floors, and is where people often meet in small groups to walk together to lunch or chat briefly before heading to separate offices. What could constitute disruption in that space is going to be different than what constitutes disruption in the public lobby of your public fiduciary’s office, which may be much smaller, hosts no other offices and often has individuals for whom a camera’s presence may prevent them from seeking services they need.

Ultimately, given the First Amendment implications and the potential for litigation, counties should speak with their legal counsel before implementing filming limitations.

Some elected officials and other highly experienced government administrators may be aware of the public’s right to record in public spaces, but how aware are your front-line employees?

The very employees who interact with the public the most. What does your receptionist do when a citizen walks into the lobby and approaches them with a cell phone camera?  There isn’t time to ask a supervisor for advice — the camera is recording. What if the citizen starts trying to open doors in the lobby that lead to offices? What if there is a client in your lobby? What if the receptionist is a temporary employee or paid intern? Will they have the skills to navigate a quickly escalating conversation while being filmed?

Without training, we cannot expect staff to know what the rules are and how to respond, especially if the citizen is confrontational. Even if the employee is performing work in a routine, appropriate manner, it is not unexpected that they suddenly might feel uncomfortable and defensive once put under the scrutiny of a video camera.

Thus, it is imperative that all our employees understand the extent of the public’s right to record, the behavior expected of them in such a situation and how to recognize when filming becomes disruptive or interferes with other governmental functions.

In addition to training, a county may consider creating a communication plan that discusses the public’s rights, any limitations the county decides to implement and any other state or federal laws that may further define the contours of the public’s right, such as privacy rights of crime victims present in the courthouse or a statutory right to observe certain stages of ballot processing during elections.

This is the tightrope that public entities must often walk: Balancing the values of access and transparency with the obligations of confidentiality and discretion. With training and planning, counties can turn unpredictable, potentially challenging situations into an opportunity to show off their good work and excellent customer service.