In 2000, Pine Hill truck driver Robert Tarus turned on a video recorder at his local borough council meeting. The mayor and council members told him he wasn’t allowed to record the meeting and instructed him to turn it off. He refused. The local police chief placed him under arrest for disorderly conduct.
Tarus’ subsequent legal challenge, arguing that he had a right to record public meetings, went all the way to the New Jersey Supreme Court. In 2007, the Supreme Court sided with him and set an important legal precedent for the principle of government transparency in the Garden State, according to Edward Barocas, legal director for the American Civil Liberties Union of New Jersey.
But Barocas said the legal principle of a citizen’s right to record public officials and employees in the course of public business is far from a settled issue. That’s particularly the case when it comes to police officers.
“Officers throughout the state of New Jersey and throughout the nation are still arresting people or threatening them with arrest for filming them in public and engaging in public business,” Barocas said.
Bill Dressel, executive director of the New Jersey State League of Municipalities, said rapidly evolving technology is creating challenges for public officials, who often find themselves unclear about their open government obligations. “The laws haven’t really kept pace with the technological changes, and it’s becoming increasingly difficult to deal with these kinds of issues,” he said.
Barocas said a court decision involving a home video recorder being settled as recently as 2007 isn’t really that surprising. It doesn’t become a legal issue until a public body tries to prohibit it, and someone contests that prohibition. And Supreme Court decisions, by design, are long and deliberative processes.
Thomas Bruno II, the Philadelphia lawyer who represented Tarus, said his client was something of a local gadfly. A Republican in a predominantly Democratic community who routinely butted heads with the Pine Hill borough council. He’d been making audio recordings of the meetings recently, but found them inadequate because he wasn’t always able to identify who was speaking when he went back and listened later.
Bruno’s firm agreed to represent Tarus in what was essentially a pro bono arrangement because of the principle at stake. They first went to federal court, where the judge informed them that federal law grants no explicit right to make a video recording. They went to state court, where the judge ruled against Tarus. The same thing happened in appellate court.
Bruno’s argument, which the Supreme Court eventually agreed with, was that the technology is irrelevant. What Tarus attempted to do was essentially the same as taking notes.
Barocas said he anticipates more legal cases involving government transparency and technology in the years ahead. A big issue right now concerns police wearing body cameras, which the ACLU supports. Another question involves public access to police videos, recorded via means such as dashboard cams.
The ACLU also maintains that electronic communications such as texting should be available to the public, even if done on private phones, if the texting involves public business.
Whatever the specifics of those future cases, however, Barocas said the decision in “Tarus vs. the Borough of Pine Hill” helped pave the way toward more government transparency.
“Technology changes,” Barocas said. “The principle of government transparency does not.”