February 28, 2006
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter in which you indicated that a "group of concerned citizens" in the Town of Stuyvesant videotapes Town Board meetings. You wrote that a resident recently "has been making copies of the tape and selling them" and asked whether that practice is "legal."
In this regard, first, it has been held that those who attend open meetings of public bodies, such as town boards, may audio record or video record those meetings, so long as the use of the recording devices is neither disruptive nor obtrusive [see e.g., Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924 (1985); Csorny v. Shoreham-Wading River Central School District, 759 NYS2d 513, 305 AD2d 83 (2003)].
When a member of the public records a meeting, the tape is his or her property. What the person does with the tape is beyond the control of the government. In Mitchell, the Appellate Division found that the ability to record an open meeting cannot be restricted, even though a tape recording may be altered, edited, or replayed in a manner that is out of context.
Lastly, I point out that it was held years ago that an agency’s tape recording of an open meeting is accessible under the Freedom of Information Law (see Zaleski v. Hicksville Union Free School District, Board of Education of Hicksville Union Free School, Sup. Ct., Nassau Cty., NYLJ, Dec. 27, 1978). When records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held 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 government 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" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), in my opinion, the intended use of the records is irrelevant. In short, even if a person obtained a town’s recording of a meeting, that person could do with the records as he or she sees fit.
I hope that I have been of assistance.