Ms. Shirley A. Heller
Alliance of Concerned Taxpayers
P.O. Box 506
Cleveland, NY 13042
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 Ms. Heller:
I have received your correspondence of October 9. You have questioned the propriety of the Central Square Central School District's policy on "Broadcasting and Taping of Board Meetings."
The policy provides as follows:
"The use of any tape recording device at public meetings of the Board of Education or committee appointed thereby is permissible as long as the device is unobtrusive and will not distract from the true deliberative process of the Board. The Board President or chairperson of the committee shall be informed prior to the meeting that such recordings are being made.
"The Board and/or the committee reserves the right to direct that a tape recording be made to ensure a reliable, accurate, and complete account of Board meetings."
Following the statement quoted above, reference is made to the Open Meetings Law and the leading decision concerning the use of recording devices at open meetings, Mitchell v. Board of Education of Garden City Union Free School District, 113 AD2d 924 (1985).
From my perspective, it is unlikely that the Board or a committee can validly require that it be informed prior to a meeting of the intent to record a meeting or that it has the right to ensure that recordings are reliable, accurate or complete. In this regard, I offer the following comments.
First, by way of background, the Appellate Division in Mitchell 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, the court in Mitchell indicated that the comments of members of the public, as well as public officials, may be recorded. As stated by the court:
"[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 the tape recording is carried out unobtrusively and in a manner that does not detract from the deliberative process. I point that essentially the same conclusion was reached with regard to the use of video recording devices in Peloquin v. Arsenault, 616 NYS2d 716 (1994).
Second, with respect to the requirement that the Board or a committee be informed in advance of a meeting of the intent to record, I note that the Court in Mitchell referred to "the unsupervised recording of public comment" (id.). In my view, the term "unsupervised" indicates that no permission or advance notice is required in order to record a meeting. Again, so long as a recording device is used in an unobtrusive manner, a public body cannot prohibit its use. Moreover, situations may arise in which prior notice or permission to record would represent an unreasonable impediment. For instance, since any member of the public has the right to attend an open meeting of a public body (see Open Meetings Law, §100), a reporter from a local radio or television station might simply "show up", unannounced, in the middle of a meeting for the purpose of observing the discussion of a particular issue and recording the discussion. In my opinion, as long as the use of the recording device is not disruptive, there would be no rational basis for prohibiting the recording of the meeting, even though prior notice would not have been given. Similarly, often issues arise at meetings that were not scheduled to have been considered or which do not appear on an agenda. If an item of importance or newsworthiness arises in that manner, what reasonable basis would there be for prohibiting a person in attendance, whether a member of the public or a member of the news media representing the public, from recording that portion of the meeting so long as the recording is carried out unobtrusively? In my view, there would be none.
With regard to the final element of the policy, that the Board or a committee "have the right to direct" that recordings be "reliable, accurate, and complete account[s] of Board meetings", I doubt that it could be enforced or that it would be found by a court to be reasonable. The court in Mitchell specifically rejected the argument that the use of a tape recorder could be prohibited because "recordings can be edited, altered, or used out of context" and added that "[c]learly if the Board were to prohibit the use of pen, pencil and paper, because of the potential for misquotation, such a restriction would be unreasonable and arguably violative of the 1st Amendment" (id.). Those who attend meetings with pen and paper are not required to take notes throughout 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 recording device should have the same discretion, i.e., to tape or record the discussions of interest to them.
I hope that I have been of assistance.
Robert J. Freeman
cc: Board of Education