August 28, 1996
Mr. David Paige
P.O. Box 139
Mountaindale, NY 12763
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 Mr. Paige:
I have received your letter of August 21 in which you complained with respect to a variety of activities in local governments in your vicinity in which public rights of access to government appear to be diminishing. You wrote that you "do not understand why the responsibility of gaining access to records or meetings via Supreme Court Action should be the financial burden of citizens whose Constitutional Rights have been denied." Specific reference was made to a resolution recently adopted by the Woodridge Village Board of Trustees which enables the Board to prohibit a member of the public from recording a meeting unless written notification is given at least twenty-four hours prior to the meeting.
In this regard, I offer the following comments.
First, the right to attend meetings and to obtain records from government agencies is not constitutional in nature; rather it is statutory. Unless a statute confers rights of access to government records, there is no such right. Several judicial decisions, none in this jurisdiction, indicate that there is no constitutional right to government records. Similarly, prior to the enactment of the Open Meetings Law, the public had no right to attend meetings of public bodies.
I note that the Open Meetings Law provides the public with the right to attend, observe and listen to the proceedings of public bodies. Nevertheless, the Law is silent with respect to public participation. Consequently, a public body may choose to prohibit the public from speaking at meetings. On the other hand, public bodies may choose to authorize public participation, and many do. In those instances, it has been suggested that a public body permit the public to participate by means of reasonable rules that treat members of the public equally.
With respect to the requirement imposed by the Board of Trustees relative to notice of an intent to record prior to a meeting, I believe that the requirement would be found to be invalid. As you may be aware, several judicial decisions indicate that a member of the public may record, either by means of audio or video recorders, open meetings of public bodies, unless the use of the recording devices would be disruptive or obtrusive. Perhaps a leading decision on the matter, a unanimous decision rendered by the Appellate Division, Second Department, is Mitchell v. Board of Education of the Garden City Union Free School District [113 AD 2d 924 (1985)], in which it was held that a Board of Education's rule prohibiting the use of tape recorders at meetings was unreasonable and therefore invalid. I note that the Court referred to "the unsupervised recording of public comment", and found that such recording "will not distract from the true deliberative process of the body" (id., 925). In my view, the use of the term "unsupervised" is intended to mean that no formal prior notification or permission should be needed for a member of the public to use recording equipment, so long as the equipment is used in a manner that is neither obtrusive nor disruptive.
Lastly, it is true that the Committee on Open Government has no authority to enforce either the Freedom of Information Law or the Open Meetings Law. It is my hope, however, that the opinions rendered by this office are educational and persuasive and that they enhance compliance with law. While the opinions are not binding, as you may be aware, they have been cited frequently by the courts and the courts have agreed with them in the great majority of those cases. It is also true that the only means of compelling compliance with the two statutes involves the initiation of a judicial proceeding. In both statutes, the courts have discretionary authority to award attorney's fees to the successful party.
Under the Freedom of Information Law, §89(4)(c) provides that:
"The court in such a proceeding may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, provided, that such attorney's fees and litigation costs may be recovered only where the court finds that:
i. the record involved was, in fact, of clearly significant interest to the general public; and
ii. the agency lacked a reasonable basis in law for withholding the record."
Under the Open Meetings Law, §107 authorizes a court to award attorney's fees to the successful party. I note, too, that in a recent decision rendered by the Court of Appeals, the State's highest court, it was held that when a court determines that a flagrant violation of the Open Meetings Law occurred and when a request is made for an award of attorney's fees, it would be an abuse of discretion not to award such fees [see Gordon v. Village of Monticello, 87 NY 2d 124 (1995)].
In addition to judicial mechanisms for guaranteeing compliance, I believe that demonstrations of interest by the public have a positive effect upon compliance with open government laws. When individuals and groups seek to assert their rights, governmental entities often give greater attention to the spirit of those laws.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Trustees