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MUNINET  January 2016

MUNINET January 2016

Subject:

Re: photographing records

From:

Tig Tillinghast <[log in to unmask]>

Reply-To:

Vermont Municipal Government Discussion Network <[log in to unmask]>

Date:

Wed, 27 Jan 2016 10:47:38 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (22 lines)

A couple thoughts of my own on policies on photographing records….

1) Camera flashes do not harm documents. Reproducing records photographically is probably the best way to guarantee that they’re around a few hundred years from now, after floods, fires, etc. Digital photos do have their own short half-lifes without continued copying, but that’s another issue. Policies based on fears of document damage are based on myths probably generated by museums and archives relying on poor data. Or policies that have more to do with protecting art reproduction rights expressed as “protection."

A study in 1955 concluded that there could be an effect (after more than 1 million studio-strength flashes at distances that produce about 16 times as much light as normal picture distances) when you removed the UV filters present in available flashes. In other words, if every Vermonter living in the state took out the same record and photographed it 32 times with a flash that costs more than $1,000 that they had deliberately modified to be more harmful, a nonvisible change could happen that could be detected by a densometer.

That said, photographing public documents without flash is likely less controversial.


2) Any arbitrary limitation not having to do with document preservation is likely be found to be unconstitutional. There are many cases in recent past and ongoing now where public officials have assumed incorrectly an ability to limit photography. They are being, to a one, knocked down in court. Policemen across the country had developed a misimpression that they could demand a photographer cease taking pictures of a police action when the photographer was not actually interfering with the event itself. This has become recently very publicized with various videos surfacing of misdeeds recorded, now that cell phones with cameras have become common.

If something happens in a public place (such as a Town Hall), it is unlikely that a policy allowing for limiting of photography would stand up in court.

Whether or not the clerk is required to furnish a document is a question I cannot answer. But limiting photography (especially non-flash photography) once it is furnished is probably not a policy that would stand up, if challenged, if it is furnished in a public place. This is not just a matter of Vermont law. The precedents in federal courts are quite consistent.


3) The provision in the state guidelines that people may not take pictures of other researchers (section 6) is the sort of thing that government likely is unable to regulate, if the event takes place in a public place. The courts’ scrutiny on limitations of speech and recording activities in public areas of government buildings and public places generally is really quite high. The only exceptions I can think about is inside the courts themselves, or special times when government bodies can go into executive session, etc.

Having wasted weekends myself fulfilling public records requests for the town, I bring all this up because I know a town can waste a bunch of legal expenses when defending such a policy that they didn’t know they did not actually have a defensible ability to regulate.

-Tig Tillinghast

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