December 23, 1996



Hon. Shirley Franchi
Town of Richfield
P.O. Box 786
Richfield Springs, NY 13439

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 Councilwoman Franchi:

I have received your letter of November 15 in which you sought "a clarification of the Open Meetings Law with regard to the use of camcorders before a meeting is called to order." You asked whether a person has "the right to record Town Officials and the general public as they come into a building and continue to tape their informal, unofficial conversations with each other?"

In this regard, I know of no law or judicial decision that deals directly with the issue that you raised. Several decisions pertain to the use of recording devices during meetings of public bodies, and it has been held that:

"[t]hose who attend such meetings, who decide to freely speak out and voice their opinions, fully realize that their comments and remarks are being made in a public forum. The argument that members of the public should be protected from the use of their words, and that they have some sort of privacy interest in their own comments, is therefore wholly specious" (id.).

In view of the determination rendered by the Appellate Division, I believe that a member of the public may tape record open meetings of public bodies, so long as the tape recording is carried out unobtrusively and in a manner that does not detract from the deliberative process [Mitchell v. Board of Education of Garden City School District, 113 AD 2d 924 (1985)]. I point that essentially the same conclusion was reached with regard to the use of video recording devices in Peloquin v. Arsenault, 616 NYS2d 716 (1994).

As inferred in the passage quoted above, there is an expectation during an open meeting, a gathering governed by statute, that peoples' comments are fully public. I do not believe that the same expectation would generally be present when people are talking informally prior to the start of a meeting. While the Open Meetings Law would not pertain to the situation that you described, the Town Board may have the ability to deal with the matter, for it is authorized by the Town Law, particularly §§63 and 64, to establish rules and to manage Town property. By means of the authority conferred by those provisions, the Board may be able to restrict the use of recording devices in the meeting room before or after meetings, unless the individuals being recorded clearly consent to being recorded.

Since the issue does not directly involve the Open Meetings Law, it is suggested that you discuss it with your town attorney or perhaps an attorney from the Association of Towns.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director