Date: June 2019
Several years ago, the Minnesota Open Meeting Law was amended to require that public entity boards record all closed meetings except those closed under the attorney-client privilege. There is no corresponding legal requirement that governmental bodies record board meetings that are open to the public.
The minutes of a board meeting are the official record of the public entity’s actions and satisfy legal record-keeping requirements. However, as the public’s interest in government operations grows, questions regarding the merits of audio or video recording board meetings often arise. The decision to record open meetings is a policy decision to be made by the public entity’s governing board. Although there may be benefits to recording the meeting’s discussions, policymakers should make this decision understanding that doing so may obligate the entity to additional requirements.
Entities may need to maintain and preserve the audio or video recordings as official government records under state laws, such as the Minnesota Official Records Act (Minn. Stat. § 15.17) and Records Management Statute (Minn. Stat. § 138.17). A government entity can only destroy government records pursuant to the timelines found in the entity’s approved records retention schedule.
The entity must keep any official records that are not listed on the schedule indefinitely unless a special application for disposal is approved by the State Records Disposition Panel or the records retention schedule is revised and approved.
If the recordings need to be kept for an extended period, entities should consider the potential need for storage space and how best to maintain the integrity of the recording’s medium. Entities should also consider the consequences of accidental deletion or destruction of these records.
The Minnesota Government Data Practices Act
Entities should be prepared to respond to requests for access to or copies of the audio and video recordings under the Minnesota Government Data Practices Act (MGDPA) found in Minnesota Statutes Chapter 13. The MGDPA regulates all government data collected, created, received, maintained, disseminated or stored by government entities, irrespective of the data’s physical form, storage, media or conditions of use.
The MGDPA establishes a presumption that government data are publicly accessible, unless access is prohibited either by law or by a temporary data classification. A government entity must provide access to public data to any requesting party, regardless of that party’s reason for requesting the data. The MCIT Resource An Introduction to the Minnesota Government Data Practices Act provides more information about the Act.
Accessibility Laws and Regulations
The Americans with Disabilities Act (ADA) requires that all state and local governments provide qualified individuals with disabilities equal access to their programs, services and activities, unless doing so would fundamentally alter the nature of such programs, services or activities, or would impose an undue burden. For public entities receiving federal funding, Section 504 of the federal Rehabilitation Act of 1973 contains similar obligations.
Minnesota Statutes, Section 363A.42 of the Minnesota Human Rights Act specifically provides that a government entity must make reasonable modifications in any policies, practices and procedures that might otherwise deny equal access to records to persons with disabilities. This law may apply to the recordings.
Practically speaking, these laws may obligate a public entity to provide access to the information in the recording through alternative means. For example, a public entity may need to provide a transcript of the video or audio recording to an individual who is deaf or hard of hearing. Members should keep in mind that these accessibility requirements also apply to recordings that are posted to websites or social media. This obligation may exist whether or not constituents need or request it.
MCIT recommends members record only those meetings they must legally record. The exception is for public hearings where the board sits as a quasi-judicial body (e.g., making decisions about land use applications). MCIT recommends that these hearings be recorded as a part of the hearing record. More information about public hearings and recording is available in the MCIT Resource Conducting Public Hearings.
Ultimately whether to record or not is a policy decision left to each individual board. As always, MCIT recommends consulting with legal counsel prior to taking any action.