May 8, 2000
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
Dear Ms. DiMiceli:
I have received your letter and the materials attached to it. In your capacity as
Executive Director of the Town of Oyster Bay Housing Authority, you have questioned the
advice rendered by the Authority's attorney concerning the use of a tape recorder at meetings
of the Authority by an employee of the Authority such as yourself. In short, it was advised
that neither members of the Board nor employees of the Authority may use a tape recorder at meetings of the Board "without the permission of the Chairman", and that "the person
wishing to record the meeting shall inform the Chairman prior to its commencement so that
the Chairman may inform those in attendance of the fact that the meeting is to be recorded."
From my perspective, the advice offered by the attorney is inconsistent with judicial
decisions. In this regard, I offer the following comments.
It is noted that neither the Open Meetings Law nor any other statute of which I am aware deals with the use of audio or video recording devices at open meetings of public bodies. There are, however, several judicial decisions concerning the use of those devices at open meetings. In my view, the decisions consistently apply certain principles. One is that a public body has the ability to adopt reasonable rules concerning its proceedings. The other involves whether the use of the equipment would be disruptive.
By way of background, until 1978, there had been but one judicial determination regarding the use of the tape recorders at meetings of public bodies, such as town boards.
The only case on the subject was Davidson v. Common Council of the City of White Plains, 244 NYS 2d 385, which was decided in 1963. In short, the court in Davidson found that the presence of a tape recorder might detract from the deliberative process. Therefore, it was held that a public body could adopt rules generally prohibiting the use of tape recorders at open meetings.
Notwithstanding Davidson, the Committee on Open Government advised that the use of tape recorders should not be prohibited in situations in which the devices are unobtrusive, for the presence of such devices would not detract from the deliberative process. In the Committee's view, a rule prohibiting the use of unobtrusive tape recording devices would not be reasonable if the presence of such devices would not detract from the deliberative process.
This contention was initially confirmed in a decision rendered in 1979. That decision
arose when two individuals sought to bring their tape recorders at a meeting of a school board in Suffolk County. The school board refused permission and in fact complained to local law enforcement authorities who arrested the two individuals. In determining the issues, the court in People v. Ystueta, 418 NYS 2d 508, cited the Davidson decision, but found that the Davidson case:
"was decided in 1963, some fifteen (15) years before the
legislative passage of the 'Open Meetings Law', and before the
widespread use of hand held cassette recorders which can be
operated by individuals without interference with public
proceedings or the legislative process. While this court has had
the advantage of hindsight, it would have required great
foresight on the part of the court in Davidson to foresee the opening of many legislative halls and courtrooms to television cameras and the news media, in general. Much has happened
over the past two decades to alter the manner in which governments and their agencies conduct their public business. The need today appears to be truth in government and the
restoration of public confidence and not 'to prevent star chamber proceedings'...In the wake of Watergate and its aftermath, the prevention of star chamber proceedings does not
appear to be lofty enough an ideal for a legislative body; and the legislature seems to have recognized as much when it passed the Open Meetings Law, embodying principles which in
1963 was the dream of a few, and unthinkable by the majority."
More recently, the Appellate Division, Second Department, unanimously affirmed a
decision of Supreme Court, Nassau County, which annulled a resolution adopted by a board of education prohibiting the use of tape recorders at its meetings and directed the board to permit the public to tape record public meetings of the board [Mitchell v. Board of Education of Garden City School District, 113 AD 2d 924 (1985)]. In so holding, the Court stated that:
"While Education Law sec. 1709(1) authorizes a board of
education to adopt by-laws and rules for its government and
operations, this authority is not unbridled. Irrational and
unreasonable rules will not be sanctioned. Moreover, Public Officers Law sec. 107(1) specifically provides that 'the court shall have the power, in its discretion, upon good cause shown, to declare any action *** taken in violation of [the Open Meetings Law], void in whole or in part.' Because we find that a prohibition against the use of unobtrusive recording goal of a fully informed citizenry, we accordingly affirm the judgement
annulling the resolution of the respondent board of education" (id. at 925).
Further, I believe that the comments of members of the public, as well as public officials, may be recorded. As stated by the court in Mitchell.
"[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 judicial determination rendered by the Appellate Division, I believe
that any person may tape record open meetings of public bodies, so long as tape recording is
carried out unobtrusively and in a manner that does not detract from the deliberative process.
With respect to the requirement that the Chairman be informed in advance of a meeting of the intent to record, I note that the Court in Mitchell referred to "the unsupervised recording of public comment" (id.). In my view, the term "unsupervised" indicates that no permission or advance notice is required in order to record a meeting. Again, so long as a recording device is used in an unobtrusive manner, a public body cannot prohibit its use by means of policy or rule. Moreover, situations may arise in which prior notice or permission to record would represent an unreasonable impediment. For instance, since any member of the public has the right to attend an open meeting of a public body (see Open Meetings Law, §100), a reporter from a local radio or television station might simply "show up", unannounced, in the middle of a meeting for the purpose of observing the discussion of a particular issue and recording the discussion. In my opinion, as long as the use of the recording device is not disruptive, there would be no rational basis for prohibiting the recording of the meeting, even though prior notice would not have been given. Similarly, often issues arise at meetings that were not scheduled to have been considered or which do not appear on an agenda. If an item of importance or newsworthiness arises in that manner, what reasonable basis would there be for prohibiting a person in attendance, whether an employee, a member of the public or a member of the news media representing the public, from recording that portion of the meeting so long as the recording is carried out unobtrusively? In my view, there would be none.
Based on the foregoing, I believe that you, or any person, would have the right to
record open meetings of the Board. Moreover, I do not believe that a person may be required
to inform the Chairman or the Board of the intent to use a tape recorder at an open meeting, so long as the recording device is used in a manner that is not disruptive.
I hope that I have been of assistance.
Robert J. Freeman
cc: Jesse H. Harmon
Jack D. Tillem