April 27, 1993
Ms. Wanda McCabe
666 South 4th Street
Lindenhurst, N.Y. 11757
The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.
Dear Ms. McCabe:
I have received your letter of April 7 in which you questioned
whether you have the right to listen to tape recordings of open
In this regard, I offer the following comments.
First, the Freedom of Information Law is applicable to all
agency records, and §86(4) of the Law defines the term "record" to
"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."
According to your letter, since the tape recordings are produced by
the Secretary of the Village of Lindenhurst Zoning Board of Appeals
in the performance of her official duties, I believe that they
constitute "records" subject to rights of access. I point out by
means of analogy that, in a case involving notes taken by the
Secretary to the Board of Regents that he characterized as
"personal" in conjunction with a contention that he took notes in
part "as a private person making personal notes of
observations...in the course of" meetings, the court cited the
definition of "record" and determined that the notes did not
consist of personal property but rather were records subject to
rights conferred by the Freedom of Information Law [Warder v. Board
of Regents, 410 NYS 2d 742, 743 (1978)].
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 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].
Third, it is noted that there are laws and rules dealing with
the retention of records. Specifically, pursuant to §57.25 of the
Arts and Cultural Affairs Law, the Commissioner of Education is
authorized to adopt regulations that include reference to minimum
periods of time that records must be retained by local governments.
That provision also specifies that a local government cannot
"destroy, sell or otherwise dispose of" records, except in
conjunction with a retention scheduled adopted by the Commissioner,
or the Commissioner's consent. Having contacted the Education
Department, I have been informed that tape recordings of meetings
must be retained for a period of four months after transcription
and/or approval of minutes.
I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Gerard Glass, Village Attorney