April 21, 1995



Ms. Nancy West
RR 2, Box 61A
Lake Luzerne, NY 12846

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Ms. West:

I have received your letter of March 21 and the materials attached to it, including a sketch of the meeting room used by the Town Board of the Town of Lake Luzerne.

You referred to a request to place a tape recorder "on or around" the Board's table, which is apparently 23 feet from the public's seating area and specified that the recording would be made for your husband. He cannot attend because the building is not "handicapped accessible". The Board prohibited you from placing the tape recorder in a location in which it could be used effectively and you were precluded from moving your seat closer to the Board.

In this regard, I offer the following comments.

First, I direct your attention to §100 of the Open Meetings Law, its legislative declaration. That provision states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

Based upon the foregoing, it is clear in my view that public bodies must conduct meetings in a manner that guarantees the public the ability to "be fully aware of" and "listen to" the deliberative process. Further, I believe that every statute, including the Open Meetings Law, must be implemented in a manner that gives effect to its intent. In this instance, the Board must in my view situate itself and conduct its meetings in a manner in which those in attendance can observe and hear the proceedings. To do otherwise would in my opinion be unreasonable and fail to comply with a basis requirement of the Open Meetings Law.

Second, as you are aware, there are judicial decisions dealing with use of audio recording devices at open meetings of public bodies. In the leading case dealing with tape recorders, it was found by the Appellate Division that "a prohibition against the use of unobtrusive devices is inconsistent with the goal of a fully informed citizenry" and annulled a resolution banning the use of tape recorders [Mitchell v. Board of Education, 113 AD 2d 924, 925 (1985)]. Despite the rule making authority of the Board of Education, it was determined that the rule prohibiting the use of tape recorders was unreasonable. In this instance, a Town Board under §63 of the Town Law also has the authority to adopt reasonable rules to govern its proceedings. However, if your tape recorder can be placed in a location that is "unobtrusive" where it can be used effectively, a prohibition against doing so would, in my opinion, be unreasonable.

In an effort to enhance compliance with and understanding of the matter, a copy of this opinion will be sent to the Town Board.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Town Board