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July 5, 2000

 

FOIL-AO-12186

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. Vescera:

I have received your letter of June 25 and appreciate your kind remarks. You have
questioned the propriety of decisions by the Utica Board of Education not to televise a
meeting and to withhold a video recording of a meeting. A news article attached to your
letter indicates that the District's attorney contended that "airing the meeting could put the
district at risk of litigation."

In this regard, I offer the following comments.

First, there is no requirement that a public body, such as a board of education, tape or
video record its meetings or that it broadcast its meetings.

Second, I believe that a video recording of an open meeting must be made available
for viewing or copying under the Freedom of Information Law.

That statute 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 video or audio recording of a
meeting, the recording 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.

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 of 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 or video tape. To suggest that a record maintained
by a school district that captures what was knowingly expressed in public pursuant to board
members' statutory duties should not be disclosed is, in my opinion, unsupportable and
clearly inconsistent with law.

Lastly, the possibility that the video recording might be pertinent to or used in
litigation is, in my view, largely irrelevant. As stated by the Court of Appeals, the State's
highest court, in a case involving a request made under the Freedom of Information Law by a
person involved in litigation against an agency: "Access to records of a government agency
under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not
affected by the fact that there is pending or potential litigation between the person making the
request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75,
78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the
standing of one who seeks access to records under the Freedom of Information Law is as a
member of the public, and is neither enhanced...nor restricted...because he is also a litigant or
potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in
Farbman, supra, discussed the distinction between the use of the Freedom of Information
Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules.
Specifically, it was found that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on governmental decision-
making, its ambit is not confined to records actually used in the
decision-making process (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure
by public agencies is, under FOIL, a public right and in the
public interest, irrespective of the status or need of the person
making the request.

"CPLR article 31 proceeds under a different premise, and
serves quite different concerns. While speaking also of 'full
disclosure' article 31 is plainly more restrictive than FOIL.
Access to records under CPLR depends on status and need.
With goals of promoting both the ascertainment of truth at trial
and the prompt disposition of actions (Allen v. Crowell-Collier
Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited
to that which is 'material and necessary in the prosecution or
defense of an action'" [see Farbman, supra, at 80].

Based upon the foregoing, the pendency of litigation would not, in my opinion, affect
either the rights of the public or a litigant under the Freedom of Information Law.

In an effort to enhance compliance with and understanding of applicable law, a copy
of this opinion will be forwarded to the Board of Education.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Education