Ms. Sue Botsford
170 Margaret Street
Plattsburgh, NY 12901
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. Botsford:
I have received your communication of March 2 which deals with the propriety of regulations for use of video cameras at meetings of the Town Board of the Town of Schuyler Falls. You also forwarded copies of the regulations and views expressed by the Town concerning use of video equipment at open meetings.
In this regard, I offer the following comments.
Under §63 of the Town Law, a town board "may determine the rules of its procedure." Implicit in that grant of authority in my opinion is the notion that any such rules be reasonable. While I agree with much of the Town Attorney's commentary, it is questionable in my view whether certain aspects of the regulations are reasonable or appropriate.
It is noted that neither the Open Meetings Law nor any other statute of which I am aware deals with the use of audio or video recording devices at open meetings of public bodies. While there are no judicial decisions pertaining to the use of video equipment, there are several concerning the use of audio tape recorders at open meetings. From my perspective, the decisions consistently apply certain principles. One is that a public body has the ability to adopt reasonable rules concerning its proceedings. The other involves whether the use of the equipment would be disruptive.
By way of background, until 1978, there had been but one judicial determination regarding the use of the tape recorders at meetings of public bodies, such as town boards. The only case on the subject was Davidson v. Common Council of the City of White Plains, 244 NYS 2d 385, which was decided in 1963. In short, the court in Davidson found that the presence of a tape recorder might detract from the deliberative process. Therefore, it was held that a public body could adopt rules generally prohibiting the use of tape recorders at open meetings.
Nothwithstanding Davidson, however, the Committee advised that the use of tape recorders should not be prohibited in situations in which the devices are unobtrusive, for the presence of such devices would not detract from the deliberative process. In the Committee's view, a rule prohibiting the use of unobtrusive tape recording devices would not be reasonalbe if the presence of such devices would not detract from the deliberative process.
This contention was initially confirmed in a decision rendered in 1979. That decision arose when two individuals sought to bring their tape recorders at a meeting of a school board in Suffolk County. The school board refused permission and in fact complained to local law enforcement authorities who arrested the two individuals. In determining the issues, the court in People v. Ystueta, 418 NYS 2d 508, cited the Davidson decision, but found that the Davidson case:
"was decided in 1963, some fifteen (15) years before the legislative passage of the 'Open Meetings Law', and before the widespread use of hand held cassette recorders which can be operated by individuals without interference with public proceedings or the legislative process. While this court has had the advantage of hindsight, it would have required great foresight on the part of the court in Davidson to foresee the opening of many legislative halls and courtrooms to television cameras and the news media, in general. Much has happened over the past two decades to alter the manner in which governments and their agencies conduct their public business. The need today appears to be truth in government and the restoration of public confidence and not 'to prevent star chamber proceedings'...In the wake of Watergate and its aftermath, the prevention of star chamber proceedings does not appear to be lofty enough an ideal for a legislative body; and the legislature seems to have recognized as much when it passed the Open Meetings Law, embodying principles which in 1963 was the dream of a few, and unthinkable by the majority."
Most recently, the Appellate Division, Second Department, unanimously affirmed a decision of Supreme Court, Nassau County, which annulled a resolution adopted by a board of education prohibiting the use of tape recorders at its meetings and directed the board to permit the public to tape record public meetings of the board [Mitchell v. Board of Education of Garden City School District, 113 AD 2d 924 (1985)]. In so holding, the Court stated that:
"While Education Law sec. 1709(1) authorizes a board of education to adopt by-laws and rules for its government and operations, this authority is not unbridled. Irrational and unreasonable rules will not be sanctioned. Moreover, Public Officers Law sec. 107(1) specifically provides that 'the court shall have the power, in its discretion, upon good cause shown, to declare any action *** taken in violation of [the Open Meetings Law], void in whole or in part.' Because we find that a prohibition against the use of unobtrusive recording goal of a fully informed citizenry, we accordingly affirm the judgement annulling the resolution of the respondent board of education" (id. at 925).
In view of the judicial determination rendered by the Appellate Division, I believe that a member of the public may tape record open meetings of public bodies, so long as tape recording is carried out unobtrusively and in a manner that does not detract from the deliberative process.
Further, I believe that the comments of members of the public, as well as public officials, may be recorded. As stated by the court in Mitchell.
"[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" (id.).
In view of the judicial determination rendered by the Appellate Division, I believe that a member of the public may tape record open meetings of public bodies, so long as tape recording is carried out unobtrusively and in a manner that does not detract from the deliberative process. Althoug there are no judicial decisions of which I am aware that deal with the use of camcorders at open meetings, a court in my opinion would likely determine that issue based upon the same principles at those considered regarding the use of tape recorders.
With respect to specific portions of the regulations, section 1 states that:
"One camera will be allowed in the meeting room to video tape meetings. Consideration will be given by the first dated application basis. News media will be given preference in video taping meetings."
While I am unfamiliar with the room in which the Town Board conducts its meetings, I question whether it is reasonable to impose a rule that permits the presence of only one camera. If space so allows, it may be possible to permit the use of more than one camera in a non-disruptive manner. Further, although §218 of the Judiciary Law concerning the use of cameras in the courts authorizes their use only my members of the news media, I do not believe that members of the news have any special right or rights in excess of those conferred upon the public under the Open Meetings Law. The Open Meetings Law does not distinguish among those who can attend meetings; §103(a) of that statute merely states that meetings are open to "the general public."
Section 2 states that:
"Camera will be set up on a tripod turned on when meeting is called to order, operator will then be seated with audience until meeting is adjourned or a recess is called."
I question why the owner or operator of a camera is required to be seated with the audience, and why such individial could not sit next to or near his or her equipment.
Section 5 states that a "Camera cannot be hand-operated or moved at any time during a meeting." If moving a camera while it is situated on a stationary tripod is not disruptive, the operator should in my view have the ability to do so, for example, in order to focus on a person at one end of the table who is speaking, and then to a person speaking at the other end of the table. That kind of activity might involve a moverment of a camera of inches in a manner that is not disruptive and which may be nomore distractive than flipping over a sheet of paper on a notepad by a person taking notes or changing a cassette on an audio tape recorder.
Section 6 states that the "Entire meeting is to be taped, only exception being executive sessions." If that section is intended to require those using cameras to be present during and to record the entirety of a meeting, such a requirement in my opinion would be unreasonable. People who attend meetings with pen and paper are not required to take notes throughtout the entirety of a meeting; they take notes based upon what they consider to be of importance or interest to them. I believe that a person using a camera should have the same discretion, i.e., to tape or record the discussions of interest to them. Again, prohibiting a person from sitting next to his or her video camera would preclude that person from recording a portion or portions of a meeting.
Section 8 provides that "If individuals wishes [sic] to address Board without video being used, his/her wishes will be honored." As indicated earlier, in the leading decision concerning the use of audio tape recorders, the Court in Mitchell specified that people who choose to speak at open meetings do so in recognition of the fact that any person present can see or hear their comments, and that "it should be of no consequence that they may be repeated, by means of replay, to those who were unable to attend" (id., 925). As such, based upon the direction provided in Mitchell, section 8 appears to be inappropriate. In my opinion, if a person opts to speak at an open meeting, there would be no valid basis for prohibiting the public from audio or video taping that person's remarks.
In short, there are several aspects of the regulations which in my opinion are of questionable validity and which could be found to be unreasonable.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Town Board
John T. Snell, Town Attorney