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October 1, 1997

 

Mr. Timothy R. Kavanaugh
P.O. Box 39
Cambridge, NY 12816

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
unless otherwise indicated.

Dear Mr. Kavanaugh:

I have received your memorandum of September 30 on the subject of "Taping of
School Board Executive Session", as well as the materials attached to it.

In your capacity as a member of the Cambridge Central Schools Board of Education,
you have raised a variety of issues concerning the ability to tape record executive sessions.
As indicated in our telephone conversation, the matter has generated several calls to this
office and a memorandum prepared by Charles H. Noe, Superintendent of Schools, in which
he offered several recommendations to the Board based on advice offered by myself and
others as follows:

"1. Do not have an executive session until the tapes are given to
the superintendent for destruction.

2. Do not have an executive session if it is being taped.

3. Make no records of executive session what-so-ever."

With all due respect to Mr. Noe, who might have misinterpreted or misconstrued my
comments to him, I would not have offered the advice reflected in the recommendations as
he presented them. In conjunction with our conversation and the foregoing, you have asked
"what statutes, if any, apply to taping executive sessions, and any other information [I] feel
would be germane to this issue."

In this regard, I offer the following remarks.

First, 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, their
thrust is 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 (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).

In view of the judicial 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 tape
recording is carried out unobtrusively and in a manner that does not detract from the
deliberative process.

Again, while there are no decisions that deal with the use of tape recorders during
executive sessions, I 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. Viewing the matter from a different vantage point, when
representatives of public bodies have asked whether they should tape record executive
sessions, I have suggested that doing so may result in unforeseen and potentially damaging
consequences. For reasons to be discussed later in detail, I believe that a tape recording is
a "record" as that term is defined in section 86(4) of the Freedom of Information Law and,
therefore, would be subject to rights conferred by that statute. 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.

In short, I am suggesting that tape recording an executive session could potentially
defeat the purpose of holding an executive session, and that, in my opinion, a board of
education, based on its authority to adopt rules to govern its own proceedings conferred by
§1709 of the Education Law, could, by rule, prohibit a member from using a tape recorder
at an executive session absent the consent of a majority of the board. I believe that a
recommendation was made to the Superintendent consider the adoption of such a rule; it was
not suggested that an executive session should not be held if it is being recorded.

Second, from my perspective, a tape recording of an executive session prepared by
a board member would fall within the coverage of the Freedom of Information Law.
Moreover, if that is so, the tape recording could be destroyed or erased only in conjunction
with provisions of the Arts and Cultural Affairs Law dealing with the retention and disposal
of records.

The Freedom of Information Law pertains to all agency records and defines the term
"record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs, rules,
regulations or codes."

The Court of Appeals, the State's highest court, has construed the definition as
broadly as its specific language suggests. The first such decision that dealt squarely with the
scope of the term "record" involved documents pertaining to a lottery sponsored by a fire
department. Although the agency contended that the documents did not pertain to the
performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental"
activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy"
[see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found
that the documents constituted "records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the
spirit as well as the letter of the statute. For not only are the
expanding boundaries of governmental activity increasingly
difficult to draw, but in perception, if not in actuality, there is
bound to be considerable crossover between governmental and
nongovernmental activities, especially where both are carried on
by the same person or persons" (id.).

Additionally, in another decision rendered by the Court of Appeals, the Court focused
on an agency claim that it could "engage in unilateral prescreening of those documents which
it deems to be outside of the scope of FOIL" and found that such activity "would be
inconsistent with the process set forth in the statute" [Capital Newspapers v. Whalen, 69 NY
2d 246, 253 (1987)]. The Court determined that:

"...the procedure permitting an unreviewable prescreening of
documents - which respondents urge us to engraft on the statute
- could be used by an uncooperative and obdurate public official
or agency to block an entirely legitimate request. There would
be no way to prevent a custodian of records from removing a
public record from FOIL's reach by simply labeling it 'purely
private.' Such a construction, which would thwart the entire
objective of FOIL by creating an easy means of avoiding
compliance, should be rejected" (id., 254).

Perhaps closest to your situation is a case involving notes taken by the Secretary to
the Board of Regents that he characterized as "personal" in conjunction with a contention
that he took notes in part "as a private person making personal notes of observations...in the
course of" meetings. The court cited the definition of "record" and determined that the notes
did not consist of personal property but rather were records subject to rights conferred by the
Freedom of Information Law [Warder v. Board of Regents, 410 NYS 2d 742, 743 (1978)].

Based upon the foregoing, assuming that you recorded the meeting in furtherance of
the performance of your duties as a member of the Board, I believe that the tape recording
would constitute a "record" that falls within the coverage of the Freedom of Information
Law.

With respect to the retention and destruction of the tape, I direct your attention to
Article 57-A of the Arts and Cultural Affairs Law, which deals with the management,
custody, retention and disposal of records by local governments. For purposes of those
provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic,
that is made, produced, executed, or received by any local
government or officer thereof pursuant to law or in connection
with the transaction of public business. Record as used herein
shall not be deemed to include library materials, extra copies of
documents created only for convenience of reference, and stocks
of publications."

Further, §57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"1. It shall be the responsibility of every local officer to
maintain records to adequately document the transaction of
public business and the services and programs for which such
officer is responsible; to retain and have custody of such records
for so long as the records are needed for the conduct of the
business of the office; to adequately protect such records; to
cooperate with the local government's records management
officer on programs for the orderly and efficient management of
records including identification and management of inactive
records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed for
the continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any
public record without the consent of the commissioner of
education. The commissioner of education shall, after
consultation with other state agencies and with local government
officers, determine the minimum length of time that records
need to be retained. Such commissioner is authorized to
develop, adopt by regulation, issue and distribute to local
governments retention and disposal schedules establishing
minimum retention periods..."

Based on the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials must "have custody" and "adequately
protect" records until the minimum period for the retention of the records has been reached.

Based on the preceding points, I would not have advised that the tape recording of the
executive session be destroyed. It is suggested that you or the District's records management
officer review the applicable retention schedule to ascertain the minimum period of retention,
which I believe is four months from the date of the meeting.

Similarly, I believe that it was advised that, in my view, tape recording executive
sessions could result in unforeseen consequences; I do not believe that it was recommended
that no records "whatsoever" be prepared regarding executive sessions.

Although somewhat tangential but in my view pertinent to the issues, I note that both
the Open Meetings Law and the Freedom of Information Law are permissive. While the
Open Meetings Law authorizes public bodies to conduct executive sessions in circumstances
described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive
session be held even though a public body has right to do so. Further, the introductory
language of §105(1), which prescribes a procedure that must be accomplished before an
executive session may be held, clearly indicates that a public body "may" conduct an
executive session only after having completed that procedure. If, for example, a motion is
made to conduct an executive session for a valid reason, and the motion is not carried, the
public body could either discuss the issue in public, or table the matter for discussion in the
future. Similarly, although the Freedom of Information Law permits an agency to withhold
records in accordance with the grounds for denial, it has been held by the Court of Appeals
that the exceptions are permissive rather than mandatory, and that an agency may choose to
disclose records even though the authority to withhold exists [Capital Newspapers v. Burns],
67 NY 2d 562, 567 (1986)].

I am unaware of any statute that would generally prohibit a Board member from
disclosing information acquired during an executive session. Further, even when information
might have been obtained during an executive session properly held or from records marked
"confidential", I point out that the term "confidential" in my view has a narrow and precise
technical meaning. For records or information to be validly characterized as confidential,
I believe that such a claim must be based upon a statute that specifically confers or requires
confidentiality.

For instance, if a discussion by a board of education concerns a record pertaining to
a particular student (i.e., in the case of consideration of disciplinary action, an educational
program, an award, etc.), the discussion would have to occur in private and the record would
have to be withheld insofar as public discussion or disclosure would identify the student.
As you may be aware, the Family Educational Rights and Privacy Act (20 USC §1232g)
generally prohibits an educational agency from disclosing education records or information
derived from those records that are identifiable to a student, unless the parents of the student
consent to disclosure. In the context of the Open Meetings Law, a discussion concerning a
student would constitute a matter made confidential by federal law and would be exempted
from the coverage of that statute [see Open Meetings Law, §108(3)]. In the context of the
Freedom of Information Law, an education record would be specifically exempted from
disclosure by statute in accordance with §87(2)(a). In both contexts, I believe that a board
of education, its members and school district employees would be prohibited from
disclosing, because a statute requires confidentiality. Again, however, no statute of which
I am aware would confer or require confidentiality with respect to most matters considered
in executive session.

In a case in which the issue was whether discussions occurring during an executive
session held by a school board could be considered "privileged", it was held that "there is no
statutory provision that describes the matter dealt with at such a session as confidential or
which in any way restricts the participants from disclosing what took place" (Runyon v.
Board of Education, West Hempstead Union Free School District No. 27, Supreme Court,
Nassau County, January 29, 1987).

As suggested earlier, while there may be no prohibition against disclosure of the
information acquired during executive sessions or records that could be withheld, the
foregoing is not intended to suggest such disclosures would be uniformly appropriate or
ethical. Obviously, the purpose of an executive session is to enable members of public
bodies to deliberate, to speak freely and to develop strategies in situations in which some
degree of secrecy is permitted. Similarly, the grounds for withholding records under the
Freedom of Information Law relate in most instances to the ability to prevent some sort of
harm. In both cases, inappropriate disclosures could work against the interests of a public
body as a whole and the public generally. Nevertheless, particularly in a case in which an
executive session might have been improperly held, there would be no provision of law that
would prohibit a person in attendance from disclosing information acquired during the closed
session.

In an effort to clarify my position on the matter and to enhance compliance with and
understanding of applicable law, copies of this response will be forwarded to the
Superintendent and the Board of Education.

I hope that I have been of assistance..

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Charles H. Noe
Board of Education