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FOIL-AO-13715

 

November 21, 2002

Dear

It is my understanding that you have requested an advisory opinion concerning whether a
municipality may properly deny a request for access to a tape recording of a meeting of a municipal
board.

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

First, 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 municipal 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, case law indicates 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 municipal board and perhaps the staff of a municipality
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 municipality 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

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