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WILLIAM J. SCOTT
' ATTORNEY GENERAL
STATE OF ILLINOIS
S00 SOUTH SECOND STREET
SPRINGFIELD
62706
May 5, 1975
_ PILE NO. S-908 . \
COUNTIES: LO
Tape Recording of Open Meetings .
and the Illinois Eavesdropping Ac
Honorable Martin Rudman
State's Attorney, Willi County
Courthouse
Joliet, Iliinois 60431,
letter wherein you state:
my ax Opinion S-867 of Feb-
975, I hereby request your opinion |
eeitg question:
tronic recording by. private S$, Aho axe not participants, of eéedings of County Board meetings without the consent of the County Board members, a violation of Article XIV of
Chapter 38, Illinois Revised Statutes, 19737"
‘In opinion 8-867, I stated that a governmental body, euch as a county board, may not prevent the tape recording of |
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Honorable Martin Rudman - 2.
a meeting that comes under the provisions of the Illinois Open Meetings Act. (Ill. Rev. Stat. 1973, ch. 102, par. 41 et seq.) Although that question dealt specifically with a county board meeting, it was clearly indicated that tape recordings of the ‘proceedings were to be allowed in all “Open Meetings" held in this State. Although your question deals with county board meet- ings, the answer is again equally applicable to all “Open Meetings”.
Your inquiry calls into question the relationship be- tween my previous opinion and Article 1¢ of the Illinois Criminal Code of 1961. (111. Rev. Stat, 1973, ch. 38, par. 14-1 et seq.) Article 14 is concerned with the crime of eavesdropping. Section ié-1 of the Act defines an eavesdropping device and an eaves~- dropper as:
“(a) Eavesdropping device.
An eavesdropping device is any device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means; Provided, however, that this definition shall not include Gevicea used for the restoration of the deaf or hard-of~hearing to normal or partial hearing.
— (e) Eavesdropper.
An eavesdropper is any pereon, including law enforcement officers, who operates or partici-: pates in the operation of any eavesdropping device contrary to the provisions of this Article.”
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Honorable Martin Rudman - 3, Section 14-2 of the Act sets forth the elements of the offense of eavesdropping:
“A pergon commits eavesdropping when he:
{a) Uses an eavesdropping device to hear or .
record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State's Attorney; or (b) Uses or divulges, except in a criminal pro- ' eeeding; any information which he knows or reason- ably should know was obtained through the use of an eavesdropping device.”
The initial issue ise whether the legislature intended to include within the purview of the Zavesdropping Act, the tape recording of the proceedings of an "Gpen Meeting". (See, Op. Atty. Gen. 5-736, issued April 17, 1974.) I assume such recording is made openly and not secretly. For the reasons set forth below I do not believe that the Eavesdropping Act applies to such tape recordings. An analysis of the legislative history of eavesdropping statutes in general, as well as a recognition of const Ltutionaily protected conduct invelved indicates that tape recording of “Open Meetings" is not to he construed as criminal conduct.
The crime of eavesdropping although provided for by statute in many jurisdictions finds its origins in the common
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Honorable Martin Rudman - 4.
law. Blackstone defined the common law offense of eavesdropping as, “listening under walls or windows or the eaves of a house to hearken after discourse, and thereupon to frame slanderous and mischievous tales.“ (4 Blackstone Coumentaries 168; Pavesich v. 3 and Life Insurance Co., 122 da. 190, 50 S.E. 68, 69 L.R.A. 101.) The origins of eavesdropping legislation were thus based , upon a concern with protecting the individual and his right of privacy. The Committee Comments to the tllinois law enforce this theory. The Committee states that the reason for the legislation is to protect the privacy of individuals, one of the fundamental civil liberties of our syatem. It is apparent that the Committee which drafted these provisions waa opposed to eavesdropping as an unwarranted invasion of the privacy of individuals. See gen« erally; People v. Kurth, 34 Ill. 24 387. , The generally accepted definition of the term eaves~- ‘dropping also lends support to the theory that the legislation ie designed to protect the privacy of individuals. In the absence of a statutory definition indicating a different legislative in- tention, words used in a statute are presumed to have their ordi- nary and popularly understood meaning. (Farand Coal Co. v. Halpin,
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10 I11. 24 507.) Eavesdropping is defined as listening secretly to what is aaid in private. (Webster's Third New International Dictionary.) From the continued use of the tern eavesdropping, it appears that the General Assembly intended Article 14 of the Criminal Code of 1961 to protect individuals only from secret or unknown monitering of their conversations. People v. Kurth, supra; (Schaeffer J. concurring) .
It is apparent, therefore, that before an individual may be guilty of eavesdropping, the words or conversations which he monitors must be of a private nature and the monitoring must ‘be secret. With this prerequisite established, the words of the Illinois Open Meetings Act indicate strongly the answer to your _ question. Section 1 of that Act, (X11. Rev. Stat. 1973, ch. 102, par. 41) sets forth the public policy of the State:
"(T]hat the public commissions, committees,
boards and councils and the other public
agencies in this State exist to aid in the
conduct of the people's business. It is the
tent of 6 Act that their acti be taken
openly and that their deliberations be con-
ducted openly." (Zmphasis added.)
The recognition of the public nature of governmental ‘Geliberations is found in numerous cases, (See Prosser, Handbook
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Honorable Martin Rudman <- 6.
of the Law of Torts, sec. 117 (4th ed. 1971).) The prevailing.
law of invasion of privacy generally recognises that the interests in privacy fade when the information involved already is available _ to the public. Cox Corporation v. Cohn, __U.S.__ i, 95 S. Ch. 1029, st. Bd. 22, (1975). - Therefore, it is my opinion that the Eavesdropping Act is not applicable to electronic recording by private citizens of the proceedings of any meeting where the provisions of the Illinois Open Meetings Act are applicable. Neither the public officials participating in such a meeting nor the private citizens in attend- ance at the meeting can claim any right of privacy for their con- duct. To aliow any one individual, whether an officeholder or concerned citizen to unilaterally object to the tape recording of the proceedings of an “Open Meeting” would violate the spirit and intent of opinion S867 and the Illinois Open Meetings Act. The recording of proceedings is not within the protected area of . eavesdropping legislation, and therefore is not objectionable.
Very truly yours,
ATTORNEY GENERAL