Date: April 23, 1999

Case No.: 1998-STA-6

In the Matter of

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH

       Prosecuting Party

    and

JACK M. HAEFLING
       Complainant

    vs.

UNITED PARCEL SERVICE
       Respondent

   This case will be called for hearing on April 28, 1999 in the U.S. Tax Court, Room 288, Federal Building and Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. The case was originally scheduled to be heard on March 2, 1999 in the same location but was rescheduled by motion of the Prosecuting Party as a result of the need for additional discovery.

   On April 19, 1999, I received a letter from Clayton Taylor, Special Projects Manager, WISH TV, Channel 8 in Indianapolis, Indiana. Mr. Taylor expresses an interest in videotaping the hearing on both April 28 and April 29 and requests an expression from the Administrative Law Judge determining access of their camera to this proceeding. He indicates that there is a public interest issue involved and he requests that WISH TV be permitted to videotape at least a portion of the hearing.

   Kevin W. Betz, counsel for the Complainant, submitted a statement indicating that they are not advocating a position in favor of nor in opposition to the videotaping. Daniel C. Emerson, counsel for United Parcel Service, filed a statement in which he expresses vigorous opposition to the introduction of any photographic equipment into the Courtroom. He cites as authority Local Rule 83.3 of the United States District Court for the Southern District of Indiana. Ruben R. Chapa, Counsel for the Prosecuting Party, similarly filed an objection to the videotaping and cites as authority a statement of the Administrative Body to the Judicial Conference of the United States dated March 1979 and also reference is made to Local Rule 83.3 mentioned previously. Thus, both the Prosecuting Party and the Respondent oppose introduction of videotaping equipment at the hearing and Counsel for the Complainant essentially takes no position.

   The regulations provide guidance for audiovisual coverage of administrative hearings. 29 C.F.R. Part 2, Subpart B. The rules offer general principles to be observed in either granting or denying requests for permission to cover hearings audiovisually. 29 C.F.R. § 2.11. Coverage is to be excluded in adjudicatory proceedings involving the rights or status of individuals where the individual's past culpable conduct or personal life is a primary subject of adjudication; and where that individual objects to coverage. The rules also provide a strict prohibition against audiovisual coverage involving certain categories of cases. 29 C.F.R. § 2.13. However, the Surface Transportation Assistance Act of 1982 (STAA) is not mentioned as a prohibited hearing type. Where conflicting values are present, the regulations require a determination as to whether the public's right to know outbalances the individual's right to privacy. 29 C.F.R. § 2.14. In the event audiovisual coverage is restricted or excluded, the regulations specifically require that the record state fully the reasons for that decision. 29 C.F.R. § 2.14. A witness has the right at any time during his testimony to exclude coverage. 29 C.F.R. § 2.15. In summary, the regulations provide authority for the introduction of audiovisual coverage of administrative hearings and they also provide authority for the exclusion of that coverage. My interpretation is that they do not proscribe the introduction of audiovisual coverage in our hearing absent a specific witness objection.

   The implementing regulations for the STAA provide rules of procedure and also make applicable the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. 29 C.F.R. § 1978.100(a)(b); 29 C.F.R. § 1978.106(a); and 29 C.F.R. Part 18. The Part 1978 procedural rules offer no guidance as to the use of videotaping equipment during these hearings. Similarly, the Rules of Practice and Procedure found at Part 18 also do not provide specific direction in deciding whether videotaping is permissible in this case. Our procedural regulations do provide that:

The Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.

29 C.F.R. § 18.1(a)

   Rule 53, Fed. R. Crim. P., contains an absolute ban on broadcasts from federal courtrooms in criminal matters. The Federal Rules of Civil Procedure are silent on the subject. However, statutory authority is conferred for all courts established by Act of Congress to prescribe rules for the conduct of their business. 28 U.S.C. § 2071(a) (1988). Based upon authority conferred by that statute, the Federal Rules of Civil Procedure provide that:

Each District Court, acting by a majority of its District Judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice. . . . A local rule takes effect on the dates specified by the District Court and remains in effect unless amended by the Court or abrogated by the judicial counsel of the Circuit.

F. Rul. Civ. P. 83(a)(1). Pursuant to that authority, local rules of the United States District Court for the Southern District of Indiana were promulgated by the local Judges and made effective on February 1, 1992. S.D.Ind.L.R. 1.1(b).

   L.R. 83.3 is captioned Courtroom and Courthouse Decorum. That rule reads as follows:

'RESOLVED, That the Judicial Conference of the United States condemns the taking of photographs in the Courtroom or its environs in connection with any judicial proceedings, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure and that they ought not be permitted in any federal Court. A Judge may, however, permit the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.' In the Southern District of Indiana the term 'environs' has been generally interpreted to mean all areas upon the same floor of the building on which a Courtroom is located.

Consistent with the Resolution of the Judicial Conference of the United States, and this Court's interpretation of the term "environs," the taking of photographs, sound recording (except by the official Court reporters in the performance of their duties), broadcasting by radio, television, or other means, in connection with any judicial proceeding on or from the same floor of the building on which a Courtroom is located are prohibited. Provided, however, that incidental to investitive, ceremonial or naturalization proceedings, a Judge of this Court may, in his/her discretion, permit the taking of photographs, broadcasting, televising, or recording.

The rule is clear and unequivocal in prohibiting the use of audiovisual equipment in any courtroom located within the Federal Building and environs of the Courthouse.

   In addition to the prohibition included in the local rules, the United States Tax Court has its own Stipulations for the Use of Tax Court Courtrooms. The stipulations

contain the following proviso:

The borrowing court or agency is requested to observe the following conditions:

(4) Photographing or broadcasting of any proceedings by radio, television, or other means is prohibited in the courtroom or its environs.

As was noted above under L.R. 83.3, the District Court rules interpret the term "environs" as being all areas upon the same floor of the building on which a courtroom is located.

   Case law draws clear distinctions between criminal and civil matters and also Federal and State Court Rules. This case is a civil matter to be heard in the U.S. Tax Court which is located in the Federal Building and Courthouse. In evaluating the provisions of S.D.Ind.L.R. 83.3 and also the Conditions for Use of the United States Tax Court Courtrooms mentioned above, I find nothing in either the Rules or the Conditions which offer any discretion to me for purposes of authorizing the videotaping of all or any portion of this case. Since the resolution of the videotaping request is not discretionary, IT IS ORDERED that the request of WISH TV Channel 8 to videotape a portion or all of the hearing is hereby denied.

   Since the matter was not discretionary, WISH TV is not entitled to a hearing on the question of its exclusion. See generally Katzman v. Victoria's Secret Catalogue et al, 923 F.Supp. 580 (S.D.N.Y. 1996); Sigmon v. Parker Chapmin Flattau & Klimpl, 937 F.Supp. 335 (S.D.N.Y. 1996) The Seventh Federal Circuit has concluded that the exclusion of cameras from federal courtrooms is constitutional. United States v. Kerley, 753 F.2d 617 (7th Cir. 1985).

      RUDOLF L. JANSEN
      Administrative Law Judge