Can you record a public school official with or without their consent?

Question

Some states such as Massachusetts have 2 party consent laws which restrict secret recordings by only one party, therefore, you have to ask public school officials if they consent to being recorded. The issue is they usually say no. I was wondering if it was legal to record public officials doing their job as they are employees of the public school district, which in turn is part of the state DoE? If you can record police officers while they're doing their public duty, you should be able to record public school officials during private meetings inside their offices, right?

EDIT 7/20/18: While reading some case law, I came across this quote:

“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [the] principles [of the First Amendment].” Glik, 655 F.3d at 82

Not sure why no one pointed this out, but does this not give the right to record any public official in a public place (i.e public property such as school grounds)?

Answer 1

I would say no, it's not the same. There's a reasonable expectation of privacy that you have in an office that isn't present when you're standing on a roadside or in a city park.

In Glik v. Cunniffe, the First Circuit said "The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities" was in the spirit of the First Amendment. And this is not limited to police; an arrest "in the course of filming officials in the hallway outside a public meeting of a historic district commission" was found to be a First Amendment violation in Iacobucci v. Boulter (1st Cir. 1999).

But a private meeting in an office is not a "public place" as it is meant in Glik (even if the building is owned by the government.) And the Glik decision says "To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions."

Answer 2

There are two contexts where all-party consent is not required. One is per Massachusetts Supreme Judicial Court Rule 1:19 which allows the media to record court proceedings, the other is the public meetings law, which allows public meetings to be recorded. There is no employment-related exception. There is a separate "right to film government officials, including law enforcement officers, in the discharge of their duties in a public space" which the federal courts have said extend to filming police. The key is that the interaction has to be public.

Answer 3

The fact that someone is in an office rather than out on Boston Common makes it a trickier case, but my best guess is that this is still protected. While it's true that Glik v. Cunniffe made a lot of the fact that the police officers were in a public place, the fact that an interaction is not in a public place (although I might argue that the office is a public place) doesn't necessarily change the outcome.

The analysis starts with the question of whether the activity is protected by the First Amendment in the first place.

Here, it may not matter if the meeting is in a private place, or even if the meeting were with a private-school official. The real question is whether the video is capturing a matter of public interest. That analysis is a lot easier when you have a government official in a public place, but you can get there without it. The courts probably wouldn't have had trouble, for instance, finding that the First Amendment was implicated by a recording of Cardinal Law in a bathroom stall admitting to covering up for child molesters.

Whatever's going on in this meeting probably doesn't rise to that level, though, so it's worth thinking about whether this is actually a matter of public concern. I've never seen any recording cases that turned on the public-concern question, but the general rule is that speech is not a matter of public concern if it's just about a personal grievance on the part of the speaker, rather than an issue with broader implications or the subject of enduring public attention. This is a tricky questions because people with a personal grievance always seem to think their issue is more important than it is, and because you usually can make an argument that any individual grievance is symptomatic of a larger problem.

So if the recording shows a teacher sexually harassing a student, I'd expect that to be treated as a matter of public concern. If it's just a meeting to discuss a disappointing grade or a student's college plans, that's going to be harder to sell to a court.

But let's assume the video is a matter of public concern. Because the two-party consent law isn't really viewpoint- or content-based, it may be permissible if it is a reasonable restriction on the "time, place or manner" of collecting information. Even if the office could be considered a "public place," it is probably not considered a "public forum," so the restrictions would have to satisfy intermediate scrutiny, meaning that they can impose burdens on speech if they advance a substantial government interest and if there isn't a substantial portion of that burden falling on speech that could be allowed without undermining the governmental interest. Rideout v. Gardner, 838 F.3d 65, 72 (1st Cir. 2016).

So what's the interest that the government is advancing? In the police-recording cases, the government has pointed to the following interests, several of which could have parallels in the education context:

• protecting officer privacy;
• conversational privacy;
• encouraging candid witness interviews;
• preventing interference with investigation;
• safety concerns;
• limiting public access to information bearing on national security; and
• reducing the likelihood that an interviewee will feel provoked.

With the exception of officer privacy, the courts have generally held that these are legitimate interests, but they've typically found that bans on recording were still unacceptable because they prevented so much conduct that had no bearing on the issues in question.

So you'd have to think about what exactly the government would say it was trying to do by banning all recordings of conversations without two-party consent. My first instinct would be to point to the protection of students' expectations of privacy, but there the law would probably go to far when it prevents students from even recording their own meetings. I think the government might do better if it tried to argue that it was trying to ensure candid conversations between a student and administrator; there, at least, you can maybe argue that the student is less likely to be ask or answer questions if he's trying to get a video that he wants to disclose to the public.

But there are undoubtedly all manner of other interests that government lawyers could come up with, so the question would always come down to whether that interest is important enough and whether the two-party consent law puts too much of a burden on recording to justify however much it does to advance that interest.

Answer 4

According to this article, Massachusetts is not a two-party consent state, it's a two-party knowledge state. If you inform the officials that you are recording them, then it is legal. The issue then becomes what recourse the officials have. There are some situations where an official has no obligation to have a meeting with you, so they could respond to you informing them that you are recording the conversation by refusing to have the meeting. But there are other situations where they are obligated to have the meeting, so now the question becomes whether they have have you not recording the meeting as a condition. Then there are situations where an official is requiring someone else to have the meeting (for instance, a principal may insist that a student meet with them), and there the question is whether the authority that allows them to require a meeting also allows them to prohibit recording.

Answer 5

Of course, this is not legal advice and if you plan to do anything related to this or any other legal matter, you should consult an attorney in your jurisdiction.

Please note, that although the following information is derived from the Digital Media Law Project and, thus, was created as a resource for journalists, the statutes it cites are generally applicable and so it appears the provisions would apply to you just the same as they would to a news reporter.

As you noted, Massachusetts is two-party consent. However, your answer is even more simple than that. In Massachusetts, "it is a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium." (Mass. Gen. Laws ch. 272, § 99). It applies to secret video recording when sound is captured.

Notably, a political activist who secretly shot footage of a protest after police ordered him to stop was convicted of violating this wiretapping statute (this was in a public place). However, the US COA for the 1st Circuit has held that the First Amendment independently protects recording police activity in public.

Additionally, the open meetings law in Massachusetts "expressly permits sound and video recording of public meetings (i.e., meetings of a governmental body required to be open to the public by law), except for executive sessions, by anyone in attendance.

Therefore, secret recordings are only potentially protected by the US COA for the 1st Circuit's decision, which may protect the secret recording of police activity in public. Secret recordings are not protected by the open meetings law (that law requires the would-be recorder to notify the chair of the public body and it requires that, at the beginning of the meeting, the chair "inform other attendees of any such recordings.") nor are secret recordings protected by the wiretapping law (again, which requires two-party consent).

So,

I was wondering if it was legal to record public officials doing their job as they are employees of the public school district, which in turn is part of the state DoE?

If, by "doing their job," you mean attending and/or participating in, either as a guest or a member, of the public school board of the district you're talking about, then, yes, you may record them doing their job. If, by "doing their job," you mean what you allude to in your second submitted question, e.g., recording a private meeting in an office, then the "doing their job" part doesn't have anything to do with your answer, your answer will be based on whether or not all parties have consented to the recording of the conversation. Because your question mentions the fact that such people would rarely agree to being recorded, I'm guessing you're more interested in a 'secret recording situation.' In such a situation, no, it would likely not be legal.

Other assertions that balancing interests would prevail in favor of your secretly recording this conversation in order to get some sort of important information out there or something is specious at best. Practically, it flies in the face of applicable law. As user D M mentioned above, the quote from Glik v. Cunniffe goes far to distinguish a boundary between public spaces and private spaces. Conversely, the 11th Circuit in Smith v. City of Cumming, said, "The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest."). That, persuasive but not controlling in Massachusetts, would at least be closer to what you'd want to hear. Even there, though, it is unclear whether or not gathering info on what public officials do on public property would apply to a one-on-one meeting in an administrator's office.

Anyway,

If you can record police officers while they're doing their public duty, you should be able to record public school officials during private meetings inside their offices, right?

No. There is no connection, "if/then" or otherwise, tying together what you can do re: recording police officers vs. what you can do re: recording public school officials. The ability to do it for one has no bearing one whether or not you can do it for the other.