October 5, 1998
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.
I have received your letter of September 22. In your capacity as Counsel to the Town of Sand Lake Planning Board, you have sought an advisory opinion concerning the possibility of limiting the use of cameras at meetings of the Board.
Specifically, you have asked whether the Planning Board "could order the camera turned off if it causes serious personal distress to an applicant or member of the public who wishes to address the board on a pending matter." You referred to the determination rendered in Peloquin v. Arsenault [162 Misc. 2d 306, 616 NYS2d 716 (1994)] and wrote that "[i]n the main the court's analysis focused on the obtrusiveness of the broadcast equipment itself and not on the distress and embarrassment some people feel when being photographed or videotaped." The Board's concern is that "the presence of the camera and broadcast of the meetings will inevitably lead some people to forgo exercise of their rights because of the personal stress they must undergo."
As I interpret judicial decisions pertinent to the matter, it is unlikely that the preference of the speaker bears on right to record the proceedings. In this regard, I offer the following comments.
Peloquin, although the only decision of which I am aware that dealt with the use of video recording devices at open meetings, is the latest in a series of decisions pertaining to the use of recording equipment at meetings. In my view, those 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 recording devices 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, 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 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, the Court found that the comments of members of the public, as well as public officials, may be recorded. As stated 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. While Mitchell pertained to the use of audio tape recorders, I believe that the same points as those offered by the Court would be applicable in the context of the use of video recorders. Just as the words of members of the public can be heard at open meetings, those persons can also been seen by anyone who attends.
Lastly, it is true that the court in Peloquin focused primarily on the manner in which camera equipment is used and found that the unobtrusive use of cameras at open meetings could not be prohibited by means of a "blanket ban" on their use. Nevertheless, it was also found that a prohibition "when the sole justification is a distaste for appearing on public access cable television is unreasonable" (id., 718). In my view, although you highlighted the "distress and embarrassment" that some may feel if a camera is running, those feelings are likely legally indistinguishable from the "distaste" felt by some to which the court made reference.
In sum, as I understand the judicial decisions rendered to date on the area of your inquiry, the only justification for prohibiting the use of recording devices would involve a finding that they are obtrusive or distracting. Discomfort, in my opinion, would not constitute a valid basis for directing that the use of a camera be restricted or terminated.
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.
Robert J. Freeman