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June 18, 2004

 

Hon. Al Cardamone
Supervisor, Town of Greenville
P.O. Box 38
Greenville, NY 12083

Mr. J. Theodore Hilscher
Hilscher & Hilscher
327 Main Street
Catskill, NY 12414

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, unless otherwise indicated.

Dear Supervisor Cardamone and Town Attorney Hilscher:

I have received correspondence from both of you concerning public access to a certain tape recording. The Supervisor has asked whether he is prohibited from disclosing the recording to the public; the Town Attorney asked whether the tape is subject to the Freedom of Information Law and whether it should be released to the public.

It is noted that several individuals have contacted me to discuss the matter, and based on those conversations and the written materials sent to me, the facts as I understand them, are as follows.

By way of background, the Supervisor wrote that "we", presumably the Town Board, began to record meetings several weeks ago with the intention of enabling those who cannot attend meetings of Town bodies to see and hear events occurring at those meetings. In this instance, the meeting of the Zoning Board of Appeals was taped. Although a motion to adjourn was adopted, signifying the end of the meeting, Board members remained and discussed the merits of a person being considered for appointment to the Board. It was apparently unknown to the members or others that the recording continued and captured the discussion on tape.

A variety of issues may be pertinent in relation to the foregoing, and I offer the ensuing brief comments.

First, there is nothing in the Open Meetings Law or any other statute concerning the recording of meetings of a public body, such as a town board, a planning board or a zoning board of appeals. Nevertheless, judicial decisions indicate that any person may audio record or video record an open meeting of a public body, so long as the use of the recording equipment is neither disruptive nor obtrusive [see e.g., Mitchell v. Board of Education of the Garden City Union Free School District, 113 AD2d 924 (1985); Csorny v. Shoreham-Wading River Central School District, 759 NYS2d 513, 305 AD2d 83 (2003)]. Therefore, I believe that the Town Board, a member thereof, or any member of the public may record a meeting, so long as that entity or person does so without disruption.

Second, I believe that the discussion that occurred after the adjournment of the meeting of the Zoning Board was subject to and should have been held in accordance with the Open Meetings Law. That statute is applicable to meetings of public bodies and the term "meeting" [see Open Meetings Law §102(1)] has been construed expansively by the courts. In a case decided more than twenty-five years ago, it was held that any gathering of a majority of a public body for the purpose of conducting public business constitutes a "meeting", even if there is no intent to take action, and regardless of its characterization as "informal" or as a "workshop" or "work session" [see Orange County Publications v. Council of the City of Newburgh 60 AD 2d 409, affm’d, 45 NY2d 947 (1978)]. In short, I believe that the discussion that occurred following the approval of the motion to adjourn constituted a "meeting."

Third, if the Open Meetings Law had been given effect, it appears that some or perhaps the entirety of the discussion could have occurred during an executive session.

I note for purposes of ensuring understanding that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. That being so, an executive session is not separate from an open meeting, but rather is a part of an open meeting. Further, the Open Meetings Law requires that a procedure be accomplished during an open meeting before an executive session can be held. Section 105(1) states in relevant part that:

"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."

Thereafter, paragraphs (a) through (h) specify and limit the subjects that may properly be considered in executive session.

Of likely relevance in this circumstance would have been §105(1)(f), which permits a public body to enter into executive session to discuss:

"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation."

Insofar as the discussion involved a matter leading to the appointment of a particular person, it appears that the Board could validly have conducted an executive session if it had complied with the Open Meetings Law.

In consideration of the foregoing and assuming its factual accuracy, a tape recording was made of a discussion which, perhaps in part, could have been held during an executive session.

With respect to the tape, I believe that it falls within the coverage of the Freedom of Information Law. That statute pertains to all agency records, such as those of a town, and §86(4) defines the term "record" expansively to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Since the tape was prepared for the Town, apparently by the Town Board or the Supervisor, in my opinion, it constitutes a "record" subject to rights of access.

Although the Supervisor wrote that a copy of the tape was given to me, I have neither heard the tape nor do I have a copy. Moreover, because I am not a judge and the Committee on Open Government is not a court, neither myself nor the Committee would have the right to determine rights of access to the tape.

In consideration of the nature of the discussion, it appears that portions of the tape could be withheld. As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

It is possible that some remarks might have involved personal or intimate information pertaining to an individual under consideration for appointment. To that extent, those portions of the tape might be withheld on the ground that disclosure would constitute "an unwarranted invasion o f personal privacy" [see Freedom of Information Law, §87(2)(b)].

Additionally, since the recording involves exchanges among Board members, it would consists of intra-agency material subject to §87(2)(g). That provision authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Again, if my assumptions are accurate, portions of the tape could be withheld under the Freedom of Information Law.

Lastly, and notwithstanding the foregoing, there is nothing in the Freedom of Information Law, in my view, that would prohibit the Supervisor from disclosing the tape. Section 87(2) provides that an agency may withhold records or portions of records based on the exceptions to rights of access. However, the state’s highest court has held that the exceptions are permissive. While an agency may choose to deny access in proper circumstances, it is not required to do so [see Capital Newspapers v. Burns, 109 AD2d 92, aff’d 67 NY2d 562, 567 (1986)]. Therefore, in response to the Supervisor’s question, I know of no provision of law that would prohibit him or any other person from disclosing the tape.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
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