The Marine Life Protection Act Initiative has reversed its ban on photography and filming at work sessions, following news coverage that called the legality of that ban into question. After the April 21 arrest of David Gurney of Fort Bragg over photo and public speaking bans, the Sacramento Bee, KZYX Radio, Independent Coast Observer and this newspaper quoted experts who were unanimous in saying the photography ban, as well as a ban on any public speaking at work sessions, was illegal under California”s Bagley-Keene Open Meeting Act.
“Although we are certain that a non-quorum work session is clearly not covered by the law, we will allow recording and videotaping at the upcoming work sessions so that such a minor issue does not become a distraction to the important work at hand,” MLPAI Executive Director Ken Wiseman wrote in a May 17 email to Gualala”s Independent Coast Observer and circulated to all media.
“We will allow these activities within the spirit and language of Bagley-Keene, which states, “unless to do so would constitute a persistent disruption.”
That passage in Bagley-Keene refers only to physical disruptions, such as space constraints for photo equipment.
Gurney regrets he couldn”t finish videotaping the work session where he was arrested.
“Right after the last time they forced me to turn off the camera, they immediately did something highly questionable, by dividing the regional stakeholders into two groups, against the will and the vote of that body. There is a reason that they don”t want some of this stuff on the record,” Gurney said.
The Observer challenged MLPAI”s banning of photography, which had been stated on its website for work sessions.
“Contrary to your statement, the MLPA Initiative has never had a policy that prohibits audio or video recording and photography at its meetings,” said Wiseman.
However in February, this reporter observed MLPAI staff confront a silent Gurney, demanding that he turn off his camera. That incident occurred at a public information session, not a work session. Gurney has published the video of that meeting on YouTube.
A layman”s reading of Bagley-Keene indicates that photography cannot be banned, nor can all public comment at any public meeting. This newspaper consulted two public access attorneys, who both said Bagley-Keene applies and thus MLPAI is in violation of the law with both bans.
“Although our legal counsel is in disagreement with yours as to whether or not our process is covered by Bagley-Keene, the MLPA Initiative has always sought to exceed the requirements of the law by having the most open and transparent process available. The public and the press have always been and will continue to be welcome at our meetings and work sessions,” said Wiseman.
This newspaper is seeking a copy of the legal opinion that MLPAI is relying on that allows the use of Bagley-Keene to justify photo and speaking bans. Wiseman”s letter does not mention whether or not a time for the public to speak at work sessions will be created, as required by Bagley-Keene.
MLPAI staff is now apparently asserting that non-quorum meetings are not subject to Bagley-Keene, which is true, but a new defense.
“It could very well be that they intentionally divided the group into smaller groups, just so that they could institute this no filming ban,” Gurney said.
Wiseman and this newspaper exchanged phone messages prior to presstime but were unable to connect. MLPAI staff has asked Gurney and others to obtain prior permission for filming and for special press credentials; both of those requirements also raise legal questions that will be explored.
The MLPAI is a private entity that has contracted with the state of California to get public input and consensus for creation of marine parks along the entire California Coast. The MLPAI is currently working from Point Arena to the Oregon border. Because state officials help appoint the members of its science, stakeholder and Blue Ribbon Task Force, MLPAI is subject to state law, said Jim Ewert, attorney for the California Newspaper Publishers Association.
Gurney has found himself popular with journalists since his arrest. He sees it as both an issue of First Amendment rights and local sovereignty.
“I feel it”s important for us to take some measure of control of our own destinies back from this sort of corrupt corporate hijacking of the democratic process. This includes the right and ability to make our own records of public meetings, above and beyond the high tech feeds they supply and control with the rest of their version of the process,”” said Gurney.
Will Gurney sue?
“I can”t say for sure. My next step is to vigorously defend myself against an unlawful arrest, and continue with filming our documentary about the MLPAI on the North Coast,” said Gurney.
