Mr. David P. Henry
51 Overlook Road
West Haverstraw, NY 10993
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. Henry:
I have received your letter of July 12 in which you sought my views concerning the provisions of a resolution that was apparently adopted by the Village of West Haverstraw pertaining to the use of tape recorders and other recording devices at meetings of the Board of Trustees and other Village public bodies.
Having reviewed the provisions in question, I offer the following comments.
By way of background, 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. There are, however, several judicial decisions concerning the use of those devices 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.
Notwithstanding Davidson, 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 reasonable 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."
More 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).
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.
The resolution that you presented generally permits the use of recording devices at open meetings. However, it requires that:
"Any person wishing to record a public meeting of the Village Board of Trustees, or any other Village Board, or any portion of such meeting, shall inform the Village Clerk prior to commencement of the meeting, so as to enable the Village Clerk to inform those in attendance of the fact that the meeting is to be recorded."
In this regard, I know of no judicial decision that has dealt with such a requirement, and the question in my view, as it will be with respect to my remarks concerning other aspects of the resolution, is whether the requirement is reasonable. From my perspective, since the requirement does not diminish the privilege of using a recording device at a meeting, but rather appears to be intended to enable those in attendance to know that their comments will be recorded, it represents a valid exercise of authority by the Board of Trustees.
Nevertheless, other requirements imposed by the resolution are, in my view, beyond the scope of that authority. One such provision states that:
"Any recording device, once activated, should remain activated at least until such time as all discussion concerning a particular agenda item is complete, so as to capture the full discussion thereof..."
In my opinion, the provision quoted above is unenforceable and, therefore, unreasonable. If the cassette used by a person in attendance runs out and he or she has no other cassette, that person simply cannot tape the entirety of a discussion. The same would be so if a battery runs out and a recorder can no longer be used. Further, while members of the public the right to attend meetings of public bodies, I do not believe that public bodies have the right to require that those in attendance remain at the meeting for the entirety of a discussion of an agenda item or a meeting.
The other provision of questionable validity states that:
"No more than two recording devices may be in operation at any one time, and any person undertaking to record a meeting, or a portion thereof, shall be deemed to have consented to make the recording, or a copy thereof available to any other person, including the Board, upon request, at the requesting person's sole cost and expense..."
Other aspects of the resolution deal with the placement of recording devices and requirements that they be used in a manner that is neither distracting nor obtrusive. That being so, I question whether a limitation on the number of recording devices permitted can be valid. If people place the devices under their seats or on their laps, it is unlikely that the devices would be distracting or obtrusive, and the number of devices used inconspicuously should in my opinion be unlimited.
Perhaps more importantly, if a member of the public records a meeting, I believe that the tape is the property of that individual. I cannot envision how the Village could enforce the requirement that an individual who tape records a meeting provide a copy "to any other person." Moreover, while the Village and other municipalities are required by law to maintain records for certain periods of time (see Arts and Cultural Affairs Law, Article 57-A), a member of the public could erase, reuse or destroy a tape that he or she owns at any time. I hope that I have been of some assistance.
Robert J. Freeman
cc: Board of Trustees