March 4, 2010
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, which, although dated July 13, was not received by this office until mid-December. Please accept my apologies for the delay in response.
You have requested an advisory opinion “as to the propriety of transmitting municipal public meetings to people outside of the meeting room via cell phone.” In your capacity as the attorney for several municipalities, you wrote that you “have reason to believe that some citizens in meeting rooms are surreptitiously transmitting meetings by cell phone to listeners outside of the meeting rooms.” You added that you are familiar with judicial decisions and the opinions rendered by this office involving the lawful use of tape recorders, “whether openly or secretly”, and that “in [your] experience, cell phone technology is not nearly as reliable as tape recording.” Further, you contend that “cell phone transmissions are often prone to interruptions, voice dropouts, crossed conversations, and inaudibility, for no explainable or predictable reasons.” Because that is so, it is your view that a person “who listens to a municipal meeting via a cell phone transmission is apt to get an impression which differs significantly from what was truly said.”
From my perspective, based on the direction provided in judicial decisions, a public body cannot prohibit a person in attendance at an open meeting from using his or her cell phone to transmit words expressed during the meeting to persons who are not present, unless the use of the cell phone is in some way disruptive or obtrusive.
As you are likely aware, the Appellate Division in Mitchell v. Board of Education referred to the “unsupervised recording of public comment” [113 AD2d 924, 925 (1985)]. While the use of a cell phone in the manner described does not involve recording of public comment, I believe that the principle upon which that decision was based is applicable in the context of the issue that you presented. Although it was found that a public body, in that case, a board of education, has the authority to adopt rules and procedures to govern its proceedings, those rules must be reasonable. Further, as suggested earlier, the court determined that a prohibition of the use of a recording device would be reasonable only when so doing would be disruptive or obtrusive. In short, if the use of a cell phone does not adversely affect the ability of a public body to conduct a meeting or the public to observe a meeting, I do not believe that a public body may validly preclude the use of a cell phone.
Equally significant in my view was the Court’s analogy to a prohibition of the use of pen and paper due to the possibility of misquotation, which would “arguably [be] violative of the 1st Amendment” (id.). There are innumerable instances in which persons present at meetings prepare notes that may not accurately reflect what is expressed. Similarly, when meetings are recorded and replayed, as the Court recognized, they may be altered or edited, or statements may be replayed out of context, thereby misleading the public. The Court rejected that contention. When a member of the news media records a meeting, he/she does not ordinarily broadcast the entirety of the meeting; on the contrary, brief comments, “sound bites”, might be broadcast, and some instances, they, too, may be misleading or, perhaps by choice, eliminate certain statements or points of view from being shared with listeners or viewers.
Another reality involves the possibility that a battery used to power a recording device or cell phone might weaken or lose power completely, thereby diminishing or eliminating the ability to record or transmit in a manner that accurately represents the proceedings. If that possibility served as a valid condition precedent to recording a meeting, and if a public body required that a power source be reliable during the entirety of a meeting, I believe that a court would find such a rule to be unreasonable.
For the reasons expressed above, I do not believe that a public body may preclude persons present at open meetings from using cell phones to transmit what is said at meetings to persons who are not in attendance, unless the use of a phone is disruptive to the proceedings.
I hope that I have been of assistance.
Robert J. Freeman