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June 16, 1998

 

Mr. Howard Protter
Jacobowitz and Gubits, LLP
P.O. Box 367
Walden, NY 12586-0367

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 Mr. Protter:

I have received your letter of May 19, as well as the materials attached to it.

According to the documentation, you made a request under the Freedom of
Information Law to the Town of Highlands for permission to make a copy of a videotape
of a Town Board meeting. While the Town indicated that you could view the videotape,
you were denied the ability to make a copy. That determination was apparently based
upon an action taken by the Town Board in January which states in part that:

"A copy or copies of the taped meeting will not be provided to anyone
by the Town Clerk or any town employee. There is no policy for
filing, preserving, or insuring the authenticity of these tapes. Anyone
interested in a tape of a meeting being televised may record the
meeting from their own VCR or, for those non cable subscribers, by
asking a favor of someone who does subscribe.

"Supervisor Lent made a motion, seconded by Council Member Ripa,
that a copy or copies of a taped meeting will not be provided to
anyone by the Town Clerk or any town employee."

From my perspective, the action taken by the Town Board upon which the determination
is based is inconsistent with law. In this regard, I offer the following comments.

First, while the Town might consider the videotape to be unofficial and does not vouch
for its content, I believe that it nonetheless constitutes a record that falls with in the scope
of the Freedom of Information Law. That statute pertains to agency records, and º86(4)
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."

Based on the foregoing, irrespective of its characterization or function, the videotape in
my view clearly constitutes a "record" subject to rights of access conferred by the
Freedom of Information Law.

Second, it has been held that an assertion of confidentiality cannot be upheld, unless a
statute specifically confers confidentiality. In Gannett News Service v. Office of
Alcoholism and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency
guaranteed confidentiality to school districts participating in a statistical survey concerning
drug abuse. The court determined that the promise of confidentiality could not be
sustained, and that the records were available, for none of the grounds for denial
appearing in the Freedom of Information Law could justifiably be asserted. In a
decision rendered by the Court of Appeals, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is
irrelevant to whether the requested documents fit within the
Legislature's definition of 'record' under FOIL. The definition does
not exclude or make any reference to information labeled as
'confidential' by the agency; confidentiality is relevant only when
determining whether the record or a portion of it is exempt..."
[Washington Post v. Insurance Department, 61 NY 2d 557, 565
(1984)].

In short, I do not believe that an assertion of confidentiality would serve to remove from
public rights of access records that would otherwise be available.

Third, as a general matter, the Freedom of Information Law is based upon a
presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in º87(2)(a) through (i) of the Law. I note that º87(2) specifies that accessible
records must be made available for inspection and copying. Further, º89(3) indicates that
an agency must make a copy of a record available upon payment of the requisite fee.

Next, since any person could have attended the meeting and could have seen and heard
the content of the tape, there would be no basis for a denial of access, and it was held
some twenty years ago that a tape recording of an open meeting is a "record" available
under the Freedom of Information Law (Zaleski v. Hicksville Union Free School District,
Board of Education of Hicksville Union Free School, Sup. Ct., Nassau Cty., NYLJ, Dec.
27, 1997). Although the decision cited above pertained to an audiotape recording of an
open meeting, the principles expressed in the decision would in my opinion clearly be
equally applicable to a videotape of an open meeting.

In sum, I believe that the videotape at issue must be made available by the Town for
inspection and copying, and that its prohibition regarding reproduction of the record is
inconsistent with law.

Lastly, I note that the action taken by the Town states that "There is no policy for
filing, preserving, or insuring the authenticity of these tapes." While the matter is separate
from the Freedom of Information Law, I point out that provisions of the Arts and Cultural
Affairs Law, º57.25, deal with the retention and disposal of records by entities of local
government. Further, I believe that recordings of open meetings must be maintained for a
minimum of four months.

In an effort to enhance compliance with and understanding of law, copies of this
response will be forwarded to Town officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Board
Hon. Sandra Tonneson, Town Clerk
Myron I. Mandel, Town Attorney