January 9, 2017
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, except as otherwise indicated.
I have received your letter in which you request an advisory opinion concerning an element of the “recently adopted Rules of the New York State Senate that seeks to restrict the usage of cellular telephones for the purposes of taking photographs or recording audio or video.”
The rule at issue states in relevant part that:
“Cellular telephones shall not be used to take photographs, videos or perform any recording function in the Senate Chamber, Galleries or Lobbies, except those photographic and recording functions performed by official Senate photographers and videographers, without permission of the Secretary of the Senate (Senate Rule X, §4(a)).”
As you are aware, it has been advised informally in response to inquiries by the news media that the rule is, in my opinion, contrary to the Open Meetings Law, as well as judicial precedent. I am confirming that contention in response to your request.
The Open Meetings Law applies to meetings of public bodies, and §102(2) of that statute defines the phrase “public body” to mean:
“any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or similar body of such public body.”
In consideration of the Senate’s nature, functions and membership, it clearly constitutes a “public body” required to give effect to the Open Meetings Law.
Section 103(d) was added to the Open Meetings Law in 2010 to ensure that the right to record open meetings, with reasonable limitations, is guaranteed by statute (note that §103 contains two provisions denominated as subdivision (d)). Subdivision (d)(1) states in relevant part that:
“Any meeting of a public body that is open to the public shall be open to being photographed, broadcast, webcast, or otherwise recorded and/or transmitted by audio or video means.”
Subdivision (d)(2) authorizes a public body to:
“…adopt rules, consistent with recommendations from the committee on open government, reasonably governing the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a meeting so as to conduct its proceedings in an orderly manner.”
To assist public bodies in the development of rules concerning the right of the public to record open meetings, soon after the enactment of §103(d), the Committee on Open Government prepared model rules as a means of recommending a means of complying with that provision. The focal point of the model rules is based on legislative intent and judicial precedent and states that:
“Operation of equipment to photograph, record or broadcast a meeting is permitted unless it is obtrusive, disruptive, or interferes with the deliberative process or the right of persons in attendance to observe or listen to the proceedings.”
Although public bodies have the right to adopt rules to govern their own proceedings (see e.g., Town Law, §63; Education Law, §1709; Village Law, §4-412), the courts have found in a variety of contexts that such rules must be reasonable. For example, although a board of education may "adopt by laws and rules for its government and operations,” in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)]. Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.
I note by way of background that, until 1978, there had been but one judicial determination regarding the use of recording devices at meetings of public bodies. 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, which at that time was a large, conspicuous machine, 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, however, following the enactment of the Open Meetings Law, which became effective in 1977, 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.
That contention was initially confirmed in a decision rendered in 1979. That case arose when two individuals sought to use their tape recorders at a meeting of a school board, which 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" (id., 509-510; emphasis mine).
Several years later, the Appellate Division unanimously affirmed a decision 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, supra]. 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 is inconsistent with the goal of a fully informed citizenry, we accordingly affirm the judgment annulling the resolution of the respondent board of education" (id. at 925).
In consideration of the “obtrusiveness” or distraction caused by the presence of a tape recorder, it was determined by the Court that “the unsupervised recording of public comment by portable, hand-held tape recorders is not obtrusive, and will not distract from the true deliberative process” (id., 925).
In short, the nature and use of the equipment were the factors considered by the Court in determining whether its presence affected the deliberative process, not the privacy or sensibilities of those who chose to speak.
While Mitchell pertained to the use of audio tape recorders, the same points as those offered by the Court would be applicable in the context of the use of video recorders. Just as the words of members of the public can be heard at open meetings, those persons can also been seen by anyone who attends. In Peloquin v. Arsenault, 616 NYS 2d 716 (1994), the court focused primarily on the manner in which camera equipment is physically used and found that the unobtrusive use of cameras at open meetings could not be prohibited by means of a "blanket ban.” The Court expansively discussed the notion of what may be “obtrusive” and referred to the Mitchell holding and quoted from an opinion rendered by this office as follows:
“On August 26, 1986 the Executive Director of the Committee on Open Government opined (OML-AO-1317, p.3) with respect to video recording as follows:
‘Blanket prohibition of audio recording is not permissible, and it is likely that the appellate courts would find that also to be the case with blanket prohibitions of video recording. However, what might be reasonable in one physical setting - a village board restricting camcording to the rear area of its meeting room - might not be in another - the larger chambers of a county legislature (OML-AO-1317, supra). It might well be reasonable in a village or other space-restricted setting to restrict the number of camcorders to one, as the court system may with its pooling requirement for video coverage of trials (22 NYCRR Parts 22 and 131). Such a requirement might be viewed as unreasonable in a large county legislative chamber or where a local board of education is conducting a meeting in a school auditorium.
As Mr. Freeman observed with respect to video recording (OML-AO-1317, supra), if it is ‘obtrusive and distracting’, a ban on it is not unreasonable. It is here claimed to be distracting. Tupper Lake Village Board members and some segment of the public aver that they are distracted from the business at hand because they do not wish to appear on television - the sole justification offered in defense of the policy.
Mitchell, supra, held that fear of public airing of one’s comments at a public meeting is insufficient to sustain a ban on audio recording.
Is Mr. Peloquin’s (or anyone’s else’s) video recording of a village board proceedings obtrusive?...
Hand held audio recorders are unobtrusive (Mitchell, supra); camcorders may or may not be depending, as we have seen, on the circumstances. Suffice it to say, however, in the face of Mitchell, the Committee on Open Government’s (Robert Freeman’s) well-reasoned opinions supra and the court system’s pooled video coverage rules/options, a blanket ban on all cameras and camcorders when the sole justification is a distaste for appearing on public access cable television is unreasonable. While ‘distraction’ and ‘unobtrusive’ are subjective terms, in the face of the virtual presumption of openness contained in Article 7 of the Public Officers law and the insufficient justification offered by the Village, the ‘Recording Policy’ in issue here must fall” (id., 717, 718; emphasis added by the court).
Based on the foregoing, it has been advised, for example, that a public body clearly has the authority to adopt rules to prevent verbal interruptions, shouting or other outbursts, as well as slanderous or obscene language. Similarly, I believe that a public body may regulate movement in order to preclude interference with meetings that would prevent those in attendance from observing or hearing the deliberative process.
In the context of the matter at hand, again, it is clear that the Senate, or any public body, may prohibit activity that would be disruptive. Certainly, the Senate, by rule, could prohibit the use of a cellular telephone by members of the public relative to the sound or noise that often is or can be heard when the phone rings, when users of a phone speak into the phone, or even when a message is received or sent. When the sound is audible, I would agree that it may be disruptive and detract from the deliberative process. However, when the cellular telephone is used to record public proceedings silently and unobtrusively, as in the case of its use in the Senate gallery, a prohibition of its use in that situation would, in my opinion, be contrary to §103(d) of the Open Meetings Law, as well as the judicial precedent that preceded the enactment of that provision.
If you would like to discuss the matter or have questions, please feel free to contact me.
I hope that I have been of assistance.
Robert J. Freeman
cc: Francis Patience, Secretary of the Senate