August 4, 1998
Ms. Alice Knapik
235 Knapik road
Amsterdam, NY 12010
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
Dear Ms. Knapik:
I have received your letter of July 23. You have sought an opinion concerning your right as a member of the Board of Directors of the Fulmont Community Action Agency to tape record its meetings.
In this regard, the Open Meetings Law applies to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
It is my understanding that community action agencies are created by means of the authority conferred by the Economic Opportunity Act of 1964. According to §201 of the Act, the general purposes of a community action agency are:
"to stimulate a better focusing of all available local, State,
private and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages, in
rural and urban areas to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient..." [§201(a)]
"to provide for basic education, health care, vocational
training, and employment opportunities in rural America to
enable the poor living in rural areas to remain in such areas
and become self-sufficient therein..." [§201(b)].
When community action agencies are designated, §211 indicates that they perform a
governmental function for the state or for one or more public corporations. It is noted that
a public corporation includes a county, city, town, village, or school district, for example. As such, by means of the designation as community action agencies, those agencies apparently perform their duties for the state or at least one public corporation.
Section 213 of the enabling legislation expresses an intent to enhance public participation as well as disclosure of information regarding the functions and duties of community action agencies. Specifically, subdivision (a) of §213 states in relevant part that:
"[E]ach community action agency shall establish or adopt rules
to carry out this section, which shall include rules to assure
full staff accountability in matters governed by law,
regulations, or agency policy. Each community action agency shall also provide for reasonable public access to information, including but not limited to public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible..."
While it is unclear that the Open Meetings Law applies to meetings of the Board, federal Law evidences an intent to authorize scrutiny of the governing body of a community action agency, for it refers to "reasonable access to information, including but not limited to public hearings." Moreover, I believe that the language of the federal enabling legislation indicates an intent that a community action agency be accountable by offering reasonable public access to its proceedings. It has been suggested that the provisions of the Open Meeting Law serve as a guide with respect to the openness of meetings. For instance, meetings held to discuss matters of policy or budget should be open, while discussions focusing on specific individuals, particularly in relation to personal financial or employment information, might justifiably be conducted in executive session.
If the Board of Directors is a "public body" subject to the Open Meetings Law, I note
that in the leading decision regarding the use of tape recorders at open meetings, the
Appellate Division 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).
If the Board of Directors is not a public body, it would have the authority, in my opinion, determine to permit or preclude the use of recording devices at its meetings.
I hope that I have been of assistance.
Robert J. Freeman
cc: Robert Van Heusen