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OML-AO-4602

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From:   Freeman, Robert (DOS)
Sent:    Thursday, April 17, 2008 9:39 AM
To:      

Dear

                I have received your letter and tried to reach you by phone without success.  However, I
would like to offer the following brief comments.

                First, in my view, the function of the Town Attorney involves providing legal advice and opinions.  I do not believe that the Attorney is authorized to direct or require that minutes be prepared in a particular manner.  Second, based on §30 of the Town Law, as Town Clerk, preparation of minutes is included among your powers and duties.  Third, implicit in any requirement that minutes be prepared is that they be accurate.  As do many clerks, you indicated that meetings of the Town Board are tape recorded and used as an aid in ensuring that the minutes are accurate.  In a decision rendered by the Appellate Division involving a different issue, the ability of the public to tape record open meetings, the Court rejected the Board’s prohibition of the use of recording devices, stating that:  “Clearly 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.  A contemporaneous recording of a public meeting is undoubtedly a more reliable, accurate and efficient means of memorializing what is said at the proceeding”  [Mitchell v. Board of Education, 113 AD2d 924,925 (1985)]. 

                In short, although a Board member has indicated that “he did not say what the minutes state that he said”, the tape recording, according to the Court, is a reliable and accurate record of what was said.  Therefore, assuming that the minutes that you prepared accurately reflect what was recorded, I do not believe that the minutes merit or require alteration or that the Attorney or Board member can “instruct” you to do so. 

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
NYS Department of State
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - fax
www.dos.ny.gov/coog/coogwww.html