The New Hampshire Department of Fish and Game revoked a hunting license, and the person appealed seeking reinstatement. A television reporter sought to attend the hearing, and record it via television cameras and audio recording devices. The hearings officer conducted a prehearing conference, at which the appellant argued that the hearing should be closed to cameras and recording devices, because he feared he would “freeze” in their presence and be unable to present his case. Although the media outlet objected, the hearings officer did close the hearing to cameras and audio devices, and the television reporter could do no more than observe and take notes of what occurred in the hearing.
The television station brought an action in Superior Court under the Right to Know Law, and the trial court found that the department had clearly violated RSA 91-A:2, II by excluding the cameras and recorders. The Supreme Court agreed, holding that an administrative hearings officer may not totally exclude television cameras and audio recording devices from an adjudicative public hearing based upon a participant’s fear of the devices, or based upon an agency administrative rule allowing the hearings officer to control the course of the hearing.
The opinion does not discuss whether the hearings officer could have worked with the media to specify how the recording equipment could have been placed or operated to minimize the disruption to the hearings process. This issue is likely to arise again in the future, but in the meantime, the chairpersons of public boards should be careful not to attempt to totally exclude the media or their equipment from pubic hearings. Most reporters are sensitive to the issue of disruption, and will agree to reasonable modifications in the location of their equipment, or the intensity of lights, at the request of the public agency. In the end they are there to get the story, rather than become the story.