October 31, 2003
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 and the materials attached to it. You have requested an advisory opinion concerning the obligation of the Board of Appeals of the Village of Scarsdale to tape record its deliberative discussions. You indicated that the Board audio tapes its "public hearing sessions", but not its deliberations, and that a member of the Board "has condemned the Board's failure to tape record its deliberative sessions as a violation of the Open Meetings Law."
I disagree with the Board member's contention. The only record keeping requirement found in or imposed by the Open Meetings Law pertains to minutes of meetings. Specifically, §106 contains what might be characterized as minimum requirements concerning the contents of minutes.
Specifically, §106 of the Open Meetings Law states that:
"1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.
2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon;provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the
public in accordance with the provisions of the freedom of
information law within two weeks from the date of such meetings
except that minutes taken pursuant to subdivision two hereof shall be
available to the public within one week from the date of the executive
Based upon the foregoing, it is clear in my view that minutes need not consist of a verbatim account of what was said at a meeting; similarly, there is no requirement that minutes refer to every topic discussed or identify those who may have spoken. Although a public body may choose to prepare expansive minutes, at a minimum, so long as minutes of open meetings include reference to all motions, proposals, resolutions and any other matters upon which votes are taken, I believe that it would satisfy its legal obligation concerning the preparation of a record pertaining to a meeting.
As you are aware, public bodies frequently record their meetings. However, in my
experience, they record the meetings not because of any legal requirement to do so, but rather as an aid in preparing accurate minutes or, in some instances, to have a detailed record of proceedings if an issue is complex or may become the subject of a legal proceeding. As you also indicated in your letter, members of the public who attend the deliberative sessions may record those sessions, and it has been held that those in attendance at open meetings may tape or video record the meetings, so long as the use of a recording device is not obtrusive or disruptive [see e.g., Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924(1985), People v. Ystueta, 99 Misc.2d 1105, 418 NYS2d 508 (1979), Peloquin v. Arsenault, 616 NYS2d 716 (1994), Csorny v. Shoreham-Wading River Central School District, ___AD2d___, Appellate Division, Second Department, NYLJ, May 20, 2003].
In short, there is nothing in the Open Meetings Law that requires a public body, such as the
Board of Appeals, to tape record any aspect of its meetings. Again, it may choose to do so, but I do
not believe that it is required to do so.
I hope that I have been of assistance.
Robert J. Freeman