STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 30, 1975

Mr. Vern W. Butler, Secretary
Dept. of Natural Resource Development
Office Building Number 2
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-169

Banning of use of recorders by public or media at official meetings of the Conservancy Sub-District Board

Dear Mr. Butler:

You have requested an official opinion based on the following factual situation:

The Oahe Conservancy Sub-District Board of Directors have adopted several rules governing procedure at board meetings. Among these procedures was a ruling that the use of tape recorders by the public or media at official meetings of the Conservancy Sub-District Board would be banned. The Sub-District does record the meetings for the official record.

Based on the above factual situation your question is:

Does the Conservancy Sub-District Board have the authority to ban the use of recorders by the public or media at official meetings of the Conservancy Sub-District Board?

SDCL 1-25-1 provides:

Except as otherwise provided by law, the official meetings of the state or the political subdivisions thereof, including all related boards, commissions and other agencies, and the official meetings of boards, commissions and agencies created by statute or which are non taxpaying and derive a source of revenue directly from public funds, shall be open to the public, except as herein provided.

SDCL 1-25-2 provides that an exception to the requirement of open meetings exists for the sole purpose of considering student, employee and personnel matters, but that any official action concerning such matters shall be made at an official open meeting. Nothing in SDCL 1-25 would indicate that a public board, such as the Oahe Conservancy Sub-District Board, has any authority to limit or prohibit the public from using tape recorders at open public meetings. The argument that use of such recorders appeared to have a stifling effect upon discussion is not persuasive.

Public governing bodies do have the power to exclude various devices from their meetings which cause an unreasonable physical disruption of the meeting. It is my opinion, however, that the use of tape recorders, as described in the above factual situation, does not appear to constitute any such unreasonable physical disruption of the meeting of the board. The presence of tape recorders may cause some hesitancy on the part of certain individuals to speak their mind, but the members of the public who have a right to attend the meeting should not be required to surrender their rights merely because certain members of the board might have some hesitancy about expressing their views on a controversial subject "on the record." The banning of tape recorders from the meeting of the Conservancy Sub-District Board, would, in my opinion, be in violation of SDCL 1-25.

Respectfully submitted,

William Janklow
Attorney General

WJJ:DOC:dh