By Rebecca Martin
At the last Water Board Meeting, a board member made a motion to “Make sure that those who record meetings notify us prior to doing such action and that we have a record of those doing such.”
In other words, you can’t record their meetings unless you alert the board in advance and then, submit some form of paperwork to be determined. It passed through unanimously and their Lawyer, Bill Cloonan, clarified and obliged (see video below. Starts at 7:31 and ends at 9:18).
What the board and their lawyer may not have realized is that what they requested was against NYS Open Meetings Law on recording devices.
Jennifer Schwartz Berky, KingstonCitizens.org’s Policy and Planning advisor, called Albany to confirm that this was the case, and crafted a letter to the Water Board requesting that they overturn the motion based on judicial precedents (see below).
Citizens have the right to record all city meetings, and as it pertains to the water board – we will continue to do so until the end of time. Or until at least the City of Kingston does it themselves. Water management is just too important for us not to.
We hope that this instance helps to inform the public on their rights in this case.
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WATCH: Kingston Water Board 7:31 – 9:18
Ms. Judith Hansen, Superintendent
Kingston Water Board
111 Jansen Avenue
Kingston, NY 12401
Re: New York State Open Meetings Law on Use of Recording Devices
Dear Ms. Hansen:
I am writing to notify you that a motion passed in yesterday’s meeting of the Kingston Water Board is in direct contradiction to the Open Meetings Law of New York State. The motion, which passed unanimously, would require people who wish to record or photograph meetings to register at the beginning of the meeting so that the board would have a written record. Bill Cloonan, counsel for the Water Board, agreed to provide a form for this at the next meeting.
In a message to me this morning, Robert J. Freeman, Executive Director of the New York State Committee on Open Government stated the following:
“In my opinion, based upon judicial precedent, there is no obligation on the part of the member of the public to let a board know in advance that he or she intends to record the meeting. The case law refers to the unsupervised use of recording devices. The key case – there are several decisions that stand for that notion –…is Mitchell versus the Board of Education.”
Mitchell v. the Board of Education of Garden City School District, 113 AD 2d 924 (1985) ruled that the school board’s prohibition against the use of unobtrusive recording impeded the Open Meetings Law’s goal of a fully informed citizenry: “so long as a recording device is used in an unobtrusive manner, a public body cannot prohibit its use by means of policy or rule.” The ruling further noted that “situations may arise in which prior notice or permission to record would represent an unreasonable impediment,” such as the arrival of a participant in the middle of a meeting or if agenda items are added to a meeting without prior notice.
In numerous advisories regarding this issue (see attached examples), Mr. Freeman further points out that “comments of members of the public, as well as public officials, may be recorded.” In the Mitchell case, the court stated that “those 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 mission of KingstonCitizens.org is to support citizen-engagement, accountability, and transparency in our local government. Based on our consultation with the New York State Committee on Open Government, we believe that the Water Board has a duty to follow the Open Meetings Law. We ask that you overturn the motion based on the judicial precedents cited above.
Thank you.
Jennifer Schwartz Berky
Planning and Policy Advisor
KingstonCitizens.org
FURTHER READING:
Advisory Opinion 2674 from 1996
Advisory Opinion 3155 from 2000
Mitchell vs. BOE