Lindenwold rescinds meeting recording policy after resident sues

The borough rescinded its restrictive policy and agreed to pay $15,000 in legal fees

A 24-year-old who sued Lindenwold Borough after officials ordered him to stop recording public meetings with his cellphone has prevailed in his fight against the municipality’s recording policy.

Lindenwold rescinded the policy and agreed to pay $15,000 in legal fees to settle the lawsuit filed by resident Alfonso Penna. The Borough Council formally authorized the settlement Sept. 9, less than two months after Penna sued the borough, Mayor Richard Roach Jr., Police Chief Michael McCarthy Jr., and police Officer James Wells in Superior Court in Camden County.

Penna told The Vindicator the two sides reached settlement terms just three days after his lawsuit was filed.

Under the settlement, Lindenwold agreed that any future policy governing the recording of public meetings must be adopted through an ordinance with an opportunity for public comment. Borough officials also agreed to make efforts to ensure that any future policy stays within constitutional limits.

The council resolution authorizes the $15,000 payment to Penna’s attorneys, Iris Bromberg and CJ Griffin of Pashman Stein Walder Hayden.

The lawsuit alleged that the policy violated the New Jersey Constitution, the Open Public Meetings Act, and the public’s common-law right to record government meetings.

Lindenwold’s policy allowed only one camera at a council meeting, on a first-come, first-served basis and subject to the governing body’s discretion. Anyone who wanted to record was required to notify the council at least 30 minutes before the meeting and provide the borough with the original or a copy of the unedited recording within 48 hours.

The policy also required a disclaimer stating that the video was not the borough’s official recording. Anyone who violated the rules could be ordered to stop recording, have the recording confiscated, or lose the ability to record future meetings.

A community group called Love Lindenwold routinely records council meetings and posts them on YouTube. Because the group regularly occupied the only available recording slot, Penna’s attorneys argued, the policy effectively prevented other residents or journalists from making independent recordings.

Penna, who regularly records local government meetings and posts the videos on his Facebook page, challenged the policy after confrontations with borough officials at council meetings in June and July.

At the June 10 meeting, Penna held up his cellphone to record an elderly resident questioning the mayor about borough-owned properties that the man believed were being neglected. Roach interrupted the resident and ordered Penna to stop recording. When Penna refused, the mayor directed a police officer to remove him. Penna agreed to leave, and an officer escorted him from the room.

Penna returned to the July 8 meeting and again attempted to record it. Roach stopped the meeting before the council addressed any agenda items and ordered Penna to turn off his camera, according to the lawsuit. McCarthy told Penna the meeting would not continue unless he stopped recording or left.

Several residents defended Penna and said he was not disrupting the meeting. After about nine minutes, Council President Cheryle Randall-Sharpe announced that the meeting would proceed. Penna recorded the remainder of it without incident.

Penna’s cellphone made no sound, produced no flash, and did not obstruct anyone’s view at either meeting, according to the lawsuit.

The New Jersey Supreme Court ruled in 2007 that members of the public have a common-law right to record municipal meetings. In Tarus v. Borough of Pine Hill, the court said municipalities can impose reasonable restrictions intended to prevent disruptions. But those restrictions must be adopted and enforced neutrally and cannot effectively prevent the public from recording.

Penna’s attorneys argued that Lindenwold’s one-camera limit and other requirements were not connected to preventing disruptions, particularly when someone was recording silently with a handheld cellphone. They also argued that recording public officials performing their duties and publishing the footage is protected expression.

The lawsuit sought temporary and permanent court orders blocking Lindenwold from enforcing the policy. Oral argument on Penna’s request had been scheduled for Sept. 22 before Superior Court Judge Steven Polansky.

Penna previously told The Vindicator that he began attending public meetings about a year and a half ago and noticed that many were not being recorded. He began recording meetings of the borough’s land-use board, parks and recreation commission, and fire commission and posting the videos online.

At many land-use meetings, Penna said, he is the only member of the public present. Audio recordings and meeting minutes sometimes do not become available until months later.

“I’m trying to bring more transparency to parts of our local government that receive very little public attention,” Penna told The Vindicator in July. “We already have very few people paying attention to local politics.”