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OML-AO-4890

                                                                                                April 13, 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.

Dear

            I have received your letter and apologize for the delay in response.

            You wrote that you have been videotaping meetings of the Mamakating Town Board for several years.  The room in which the meetings are held are equipped with microphones, but the Board has “consistently refused to use them despite residents asking for their use because we can not hear them very well.”  Additionally, the Board recently adopted a resolution requiring that cameras be located in the back of the room, some “54'-56' away from the members making it impossible to pick up their conversations with a standard video camcorder.”  You have sought an opinion concerning whether “the size of the room has a bearing on the placement of video/audio equipment.”

            In this regard, I offer the following comments.

            First, with respect to the capacity to hear what is said at meetings, I direct your attention to §100 of the Open Meetings Law, its legislative declaration.  That provision states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants.  It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

Based upon the foregoing, it is clear in my view that public bodies must conduct meetings in a manner that guarantees the public the ability to "be fully aware of" and "listen to" the deliberative process.

            In consideration of complaints that Board members cannot be heard, assuming that microphones are operational, to comply with the expression of legislative intent referenced above, I believe that the microphones should be used when it is difficult or impossible for those present to hear the Board’s proceedings.

            Second, although public bodies, such as town boards, have the right to adopt rules to govern their own proceedings (see e.g., Town Law, §63; Education Law, §1709), the courts have found in a variety of contexts that such rules must be reasonable.  For example, although a board of education may "adopt by laws and rules for its government and operations", in a case in which a board's rule prohibited the use of tape recorders at its meetings, the Appellate Division found that the rule was unreasonable, stating that the authority to adopt rules "is not unbridled" and that "unreasonable rules will not be sanctioned" [see Mitchell v. Garden City Union Free School District, 113 AD 2d 924, 925 (1985)].  Similarly, if by rule, a public body chose to permit certain citizens to address it for ten minutes while permitting others to address it for three, or not at all, such a rule, in my view, would be unreasonable.

            Third, I note by way of background that, until 1978, there had been but one judicial determination regarding the use of the recording devices at meetings of public bodies.  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, which at that time was a large, conspicuous machine,  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 case 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"(id., 509-510; emphasis mine).

            Several years later, the Appellate Division unanimously affirmed a decision 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, supra].  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).

In consideration of the “obtrusiveness” or distraction caused by the presence of a tape recorder, it was determined by the Court that “ the unsupervised recording of public comment by portable, hand-held tape recorders is not obtrusive, and will not distract from the true deliberative process” (id., 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 short, the nature and use of the equipment were the factors considered by the Court in determining whether its presence affected the deliberative process, not the privacy or sensibilities of those who  chose to speak.

            In view of the judicial determination rendered by the Appellate Division, 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.

            In Peloquin v. Arsenault [616 NYS 2d 716 (1994)], the court focused primarily on the manner in which camera equipment is physically used and found that the unobtrusive use of cameras at open meetings could not be prohibited by means of a "blanket ban.” The Court expansively discussed the notion of what may be “obtrusive” and referred to the Mitchell holding and quoted from an opinion rendered by this office as follows:

“On August 26, 1986 the Executive Director of the Committee on Open Government opined (OML-AO-1317, p.3) with respect to video recording as follows:

‘If the equipment is large, if special lighting is needed, and if it is obtrusive and distracting, I believe that a rule prohibiting its use under those circumstances would be reasonable.  However, if advances in technology permit video equipment to be used without special lighting, in a stationary location and in an unobtrusive manner, it is questionable in my view whether a prohibition under those circumstances would be reasonable.’

On April 1, 1994, Mr. Freeman further opined (OML-AO-2324) that a county legislature’s resolution limiting hand held camcorders to the spectator area in the rear of the legislative chamber was not per se unreasonable but rather, as challenged, it depended for its legitimacy on whether or not the camcorders could actually record the proceedings from that location.

Blanket prohibition of audio recording is not permissible, and it is likely that the appellate courts would find that also to be the case with blanket prohibitions of video recording.  However, what might be reasonable in one physical setting - a village board restricting camcording to the rear area of  its meeting room - might not be in another - the larger chambers of a county legislature (OML-AO-1317, supra).  It might well be reasonable in a village or other space-restricted setting to restrict the number of camcorders to one, as the court system may with its pooling requirement for video coverage of trials (22 NYCRR Parts 22 and 131).  Such a requirement might be viewed as unreasonable in a large county legislative chamber or where a local board of education is conducting a meeting in a school auditorium.

As Mr. Freeman observed with respect to video recording (OML-AO-1317, supra), if it is ‘obtrusive and distracting’, a ban on it is not unreasonable.  It is here claimed to be distracting.  Tupper Lake Village Board members and some segment of the public aver that they are distracted from the business at hand because they do not wish to appear on television - the sole justification offered in defense of the policy.

Mitchell, supra, held that fear of public airing of one’s comments at a public meeting is insufficient to sustain a ban on audio recording.

Is Mr. Peloquin’s (or anyone’s else’s) video recording of a village board proceedings obtrusive?...

“...Hand held audio recorders are unobtrusive (Mitchell, supra); camcorders may or may not be depending, as we have seen, on the circumstances.  Suffice it to say, however, in the face of Mitchell, the Committee on Open Government’s (Robert Freeman’s) well-reasoned opinions supra and the court system’s pooled video coverage rules/options, a blanket ban on all cameras and camcorders when the sole justification is a distaste for appearing on public access cable television is unreasonable.  While ‘distraction’ and ‘unobtrusive’ are subjective terms, in the face of the virtual presumption of openness contained in Article 7 of the Public Officers law and the insufficient justification offered by the Village, the ‘Recording Policy’ in issue here must fall” (id., 717, 718; emphasis added by the court).

            From my perspective, a rule that permits the use of cameras only at a distance in which sound cannot be heard or recorded would be found by a court to be unreasonable, if a location nearer to the Board would permit sound to be heard or recorded, and if the placement of a camera in that location would be neither disruptive nor obtrusive.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc: Town Board