December 27, 2013
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Open Meetings Law to executive sessions of the Oppenheim-Ephratah-St. Johnsville Central School District, and in particular, a rule that would prohibit a board member from tape recording discussions held in executive session. It is our opinion that a rule prohibiting one board member from recording discussions held in executive session without consent of the board would be reasonable.
Initially, this will confirm that many believe recordings of executive session discussions are not desirable because copies of such records may be sought pursuant to FOIL, at which point the agency would have to determine whether the records were required to be made available, in whole or in part. As you correctly point out, it has long been the opinion of this office that notes taken and recordings made during executive sessions are “records” subject to the Freedom of Information Law, the contents of which would determine rights of access. Further, a tape recording of an executive session may be subject to subpoena or discovery in the context of litigation. Disclosure in that kind of situation may place a public body at a disadvantage should litigation arise relative to a topic that has been appropriately discussed behind closed doors.
Although in our opinion they are not prohibited by statute, surreptitious recordings of executive sessions made by one school board member resulted in a decision from the Commissioner of Education essentially warning members that such behavior would result in removal from the board. See, Application of Nett and Raby (No. 15315, October 24, 2005).
As indicated, you “began taping executive sessions to assure compliance with the laws governing executive session,” and it is your way of taking notes. In that regard, we are aware that on perhaps many occasions, discussions that are appropriate for executive session evolve into those that are not.
This will confirm that there is no statute that deals directly with the taping of executive sessions. Several judicial decisions have dealt with the ability to use recording devices at open meetings, and although those decisions do not refer to the taping of executive sessions, they are likely pertinent to the matter. Perhaps the leading decision concerning the use of tape recorders at meetings, a unanimous decision of the Appellate Division, involved the invalidation of a resolution adopted by a board of education prohibiting the use of tape recorders at its meetings (Mitchell v. Board of Education of Garden City School District, 113 AD 2d 924 ). 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).
Authority to tape record meetings in accordance with the above decision is now set forth in the Open Meetings Law; however, §103(d)(i) pertains only to those meetings that are open to the public.
While there are no decisions that deal with the use of tape recorders during executive sessions, we believe that the principle in determining that issue is the same as that stated above, i.e., that a board may establish reasonable rules governing the use of tape recorders at executive sessions.
Unlike an open meeting, when comments are conveyed with the public present, an executive session is generally held in order that the public cannot be aware of the details of the deliberative process. When an issue focuses upon a particular individual, the rationale for permitting the holding of an executive session generally involves an intent to protect personal privacy, coupled with an intent to enable the members of a public body to express their opinions freely. As previously mentioned, tape recording executive sessions may result in unforeseen and potentially damaging consequences.
In short, we are suggesting that tape recording an executive session could potentially defeat the purpose of holding an executive session. Accordingly, it is our opinion that it would be reasonable for a board of education, based on its authority to adopt rules to govern its own proceedings conferred by §1709 of the Education Law, to prohibit a member from using a tape recorder at an executive session absent the consent of a majority of the board.
Should you have further questions, please contact me directly.
Camille S. Jobin-Davis
c: Board of Education