First Amendment Project: Bay Delta Conservation Plan barring the public from videotaping a public meeting is illegal!

FOR IMMEDIATE RELEASE: Monday, September 16, 2013
Contact: Steve Hopcraft 916/457-5546;; Twitter: @shopcraft; @MrSandHillCrane; Barbara Barrigan-Parrilla 209/479-2053; Twitter: @RestoretheDelta

First Amendment Project:
Bay Delta Conservation Plan barring the public from videotaping a public meeting is illegal!

Sacramento, CA – Restore the Delta today released an expert legal opinion finding that the Department of Water Resources (DWR) and Bay Area & Delta Conservation Plan (BDCP) barring anyone from videotaping at any “public meeting” is illegal. The legal opinion from the First Amendment Project to Restore the Delta refutes DWR assertion of barring Gene Beley or other Delta residents from recording activities at the DWR “Office Hours” held in Delta communities.

“The agency has no legal right to exclude members of the public who wish to record the public officials’ answers to their questions,” said Barbara Barrigan-Parrilla Executive Director Restore the Delta. “The staff who are imposing such restrictions should be made to cite chapter and verse on what legal authority they have to prevent members of the public from recording that which is occurring in public where they have a right to be and what they can hear with their unaided ear.”

Jim Wheaton, Founder and Senior Counsel of the First Amendment Project and Lecturer in Journalism Law in the Graduate Schools of Journalism at Stanford and University of California, Berkeley said, “The general rule is that a person is free to record, by audio recording, video recording or photograph, anything that can be heard or seen with the unaided eye. There are three general limitations on this: (1) the person doing the recording has to be in a place they have a right to be (i.e. a trespasser has no right to record), (2) the person doing the recording cannot use a means to get access to the sight or sound by, for example, climbing a tree to look over the fence, (c) the person being recorded does not have a reasonable (objective) expectation of privacy (e.g. in the gym locker room).

“The only codification of this law is found in the California Penal Code, section 632. There is a common body of law that addresses the invasion of privacy tort called ‘intrusion,’ which deals with people getting access to places or information they don’t have a right to. But that common law tort turns on exactly the same standard: did the person have an objectively reasonable expectation of privacy. (See, e.g. Shulman v. Group W Productions (1998) 18 Cal 4th 200.) Hence the language and case law under the Penal Code are instructive. For what it’s worth, the common law tort contains an extra element not found in the Penal Code, that the recording be ‘highly offensive to a reasonable person.’ Hence we will use the more privacy-protective language of the Penal Code to analyze whether there is a ‘reasonable expectation’ against recording.

“‘Penal Code section 632(a)’ prohibits [e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any. . .recording device,. . .records the confidential communication. . .

“Section 632(c) defines ‘confidential communication.’ ‘The term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.’ (Emphasis added.)

“Illustrative of the concept is Fiddle v. Epstein (1993) 16 Cal.App.4th 1649, in which a meeting of a real estate broker with purchasers carried an expectation that the participants would repeat what was said to others; this defeated any idea that the meeting was intended to be confidential under the Privacy Act. (But cf. Shulman, supra 18 Ca;.4th at 234-235, and Sanders v. American broadcast Co’s. (1999) 20 Cal.4th 907, 915 [distinguishing expectation of complete privacy in the content of the communication from expectation against it being recorded],” said Wheaton.

Wheaton continued, “The exclusion is telling for the situation here. The definition of what may not be recorded without consent expressly and categorically ‘excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public. . .’ That appears to answer the question decisively.”

Wheaton also added, “The meetings described are a ‘public gathering’ and an ‘executive proceeding. . . open to the public’, they are held in a public meeting room, they are with public officials, and there is no expectation that what the public officials say will remain confidential with the member of the public. Whether conducted, as a broad meeting with an audience, or with an audience of one, there is no objective expectation that these are ‘confidential communications.’”

Reporter and Delta resident Gene Beley explained, “I had the permission of the Delta residents that I included in the videos that we used… just not the DWR employees or their consultants. Also, I am a Stockton resident and property owner. I began reporting on this issue when I felt there was not enough publicity for the Delta residents from mainstream media. Now, just when the mainstream media is becoming interested, it is crucial to allow TV cameras into these venues to shine the spotlight on this multi-billion twin canal project.”

Barbara Barrigan-Parrilla added, “Caltrans removed our campaign signs and refuses to answer our requests for citing the legal authority behind their determination that signs must be 14 feet from Highway 160. Now DWR is seeking to restrict the rights of Delta residents to document what transpires in public meetings. Clearly the Brown Administration is trying to silence the opposition to the peripheral tunnels project. But it won’t work. Because each time they try to take away the rights of Delta residents, more Californians realize how unjust the project is and begin to question what the Brown Administration is trying to hide.”

To see Gene Beley’s video of the Brentwood DWR “Office Hours” meeting go to

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