Bivins again introduces bill requiring taping of closed sessions

Fischesser says taping issue should remain a local option

By EVAN YOUNG

Governmental bodies would be required to tape record their closed meetings under legislation recently introduced by a local state representative.

District 97 Rep. Walt Bivins, R-Oakville, has for the fourth time proposed an amendment to the Missouri Open Meetings and Records Law, or the Sunshine Law, to require public governmental bodies to make audio recordings of all closed meetings.

The Sunshine Law currently requires public governmental bodies to keep minutes of all open and closed meetings, including a record of any votes taken.

But House Bill 1769 would amend the Sunshine Law to state: “The public governmental body shall take a verbatim audio recording of all closed meetings, and shall retain such recording at least 18 months.”

The amendment, Bivins says, would ensure that an accurate record would be kept of a closed meeting and that officials adhere to the topic or topics for which the closed session was called.

Closed-session audio recordings wouldn’t be open for public scrutiny, but in the case of lawsuits alleging Sunshine Law violations, a judge could authorize an “in camera examination of the verbatim audio re-cording as it finds appropriate in order to determine whether there has been a violation …,” according to the bill.

In addition, the court “may, for the purposes of a discovery request for the minutes of a closed meeting, authorize the public governmental body to redact from the minutes of the meeting closed to the public any information deemed to qualify under the attorney-client privilege,” according to the bill’s text.

Bivins’ proposal is similar to Illinois’ Verbatim Record Law, which requires public governmental bodies to keep an audio or videotape record of closed meetings.

The legislation was adopted through the efforts of Illinois Press Association members. Lead sponsors of the Illinois Verbatim Record Law, which became effective in January 2004, were then-Illinois Sen. Barack Obama, D-Chicago, and state Rep. Barbara Flynn Currie, D-Chicago. Until the enactment of the Verbatim Record Law, Illinois law required only handwritten minutes be kept of closed meetings.

Bivins first proposed amending Missouri’s records’ law in 2007. His bill stalled in the House Judiciary Committee. The same thing happened in 2008, and again last year. He isn’t sure why his legislation has yet to gain traction, but recently told the Call that he’s heard municipal leagues previously have lobbied against the bill.

“They think it would put an extra burden on some of the executive sessions various governmental entities might have,” Bivins said. “I don’t totally understand that, but that’s their thinking.”

Tim Fischesser, executive director of the St. Louis County Municipal League, said his organization believes the recording of closed meetings “just ought to remain a local option.”

While larger governmental bodies in Missouri probably wouldn’t have trouble following such a law, smaller units — such as rural water or sewer districts — could run into problems, Fischesser said.

“I don’t know what would happen if for some reason somebody forgot to bring a tape recorder, a tape recorder didn’t work, that sort of thing,” he said. “It just seems like the more state mandates there are for little procedural issues, the more opportunities there are for mistakes.”

Minutes currently are considered the legal record of meetings, Fischesser added.

“The minutes can clarify things like the use of pronouns. You’d think the recordings would be an accurate indication of what people were talking about. But many times people come away with listening to something verbally that’s not that clear.

“… So right now the minutes are kind of the legal record of the meeting, and they allow for clarification, whereas the tape is out there and then people say: ‘Well, it sure sounds like they meant this.’ And the judge is trying to sit there and say: ‘How am I supposed to rule on what that pronoun meant or something. I’m not sure who ‘she’ was or what ‘that’ was.”

Bivins’ HB 1769 was read a second time Jan. 25. He has asked for it to be referred to the Local Government Committee.