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February 24, 2000

FOIL-AO-11972

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

I have received your letter of January 16 in which you sought an advisory opinion
concerning your right to gain access to "audio tapes of a public school board meeting."

Having sought an audio tape of a meeting of the City of Jamestown Board of
Education, the Superintendent denied the request, stating that:

"This recording was maintained by the district to assist the
secretary of the Board in the preparation of the minutes of the
meeting. As such, it is the internal, intra-agency record under
the Freedom of Information Law. I have asked our attorney to
review the law and determine if this particular record falls
within the definition contained in section 87(2)(g) of FOIL,
which exempts many intra-agency materials from disclosure."

The Board's attorney confirmed the denial on the same basis as the Superintendent.

From my perspective, the denial of your request is not only inconsistent with law, it is
illogical. In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law pertains to agency records,
and §86(4) of the Law 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, when a school board maintains a tape recording of a meeting, the
tape would constitute a "record" that falls within the coverage of the Freedom of Information
Law, irrespective of the reason for which the recording was prepared.

Second, 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 §87(2)(a) through (i) of the Law. In my view, a tape recording of an open
meeting is accessible, for any person could have been present, and none of the grounds for
denial would apply. Moreover, there is case law indicating that a tape recording of an open
meeting is accessible for listening and/or copying under the Freedom of Information Law
[see Zaleski v. Board of Education of Hicksville Union Free School District, Supreme Court,
Nassau County, NYLJ, December 27, 1978].

The fact that any person could have heard the content the record, in my view,
constitutes a waiver of the capacity to withhold what has become part of the public domain.
As stated in a decision in which the ability to prohibit the use of audio tape recorders at open
meetings was rejected, the Appellate Division determined that:

"[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" [Mitchell v.
Board of Education of Garden City School District, 113 AD 2d
924, 925 (1985)].

In like manner, when members of a board of education and the staff of a school
district exchange ideas, opinions, and engage in a deliberative process during open meetings,
they have, by statute, effectively waived their ability to preclude the public from using their
words or capturing their words on audio tape. To suggest that a record maintained by a
school district that captures words knowingly expressed in public pursuant to board
members' statutory duties is, in my opinion, unsupportable and clearly inconsistent with law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Raymond Fashano
Michael Foley