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Let's say I'm inside a U.S. government building, which houses a government agency, and I'm speaking with an employee (or agent) of that government agency.

If I directly ask them whether they are recording our conversation, and I ask them whether such recordings contain video, audio, or both ... are they legally required to tell me whether they are recording?

Would this be regulated by federal law, or state law?

It is my understanding that all recordings, including surveillance recordings, obtained by the government on public property (e.g. government property) are public records, unless the government can provide a good reason why publishing such records would pose a credible threat to public safety and security, etc.

Therefore, if you ask the government for a recording of a conversation you participated in, the government is generally required to provide a copy of the recording to you.

However, could government agencies realistically try to get around this requirement, by refusing to tell people what types of recordings they have or don't have?

After all, if you can't prove the government actually possesses a particular recording, you can't hold the government accountable for meeting this requirement.

kisspuska
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Giffyguy
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1 Answers1

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This is a matter of state law so long as the agent consents to the recording. 18 U.S.C. § 2511(2)(d) permits recording so long as at least one party to a conversation gives consent. At least 39 states require all parties to consent — impliedly or explicitly.

  1. “If I directly ask them whether they are recording our conversation, and I ask them whether such recordings contain video, audio, or both ... are they legally required to tell me whether they are recording?”

In California, for e.g., no. They may simply tell you that the conversation may be monitored or recorded, or even just tell you that your conversation will not be confidential. They may even use a beep-tone warning device audible to all parties to give lawful notice of potential monitoring and or recording rebutting an objectively reasonable expectation of privacy. Even if you object to recording, the recording will generally be found lawful, and they never had to say a word about recording, and beep-tone warnings are federally regulated matters, if complied with, likely permitting recording in any state. In the jurisdictions of the Federal Court of Appeals of the 9th Circuit (AL, WA, MO, OR, NE, AZ, CA & HI) it is generally true even if the beep-tones would not comply with the specifications set forth in federal regulations.

  1. See above.

  2. I would defer in this question to others who know more about FOIA requests.

kisspuska
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