Challenge To Video and Photo Ban On NY State Senate Floor

C OMMITTEE M EMBERS
R O A NN M. D ESTITO
P ETER D. G RIMM
M. J EAN H ILL
K ATHY H OCHUL
H ADLEY H ORRIGAN
R OBERT M UJICA , J R .
R OSSANA R OSADO
D AVID A. S CHULZ
S TEPHEN B. W ATERS
COMMITTEE ON OPEN GOVERNMENT

S T AT E O F N EW YO R K
D E P AR T M E NT O F ST AT E
ONE COMMERCE PLAZA
99 W ASHINGTON AVENUE
ALBANY, NY 12231-0001
TELEPHONE: (518) 474-2518
FAX: (518) 474-1927
WWW .DOS.NY.GOV/COOG/
January 9, 2017
C HAIRPERSON
F RANKLIN H. S TONE
E XECUTIVE D IRECTOR
R OBERT J. F REEMAN
Honorable Brad Hoylman

Member of the Senate
Legislative Office Building, Room 413
Albany, New York 12247
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, except as otherwise indicated.
Dear Senator Hoylman:
I have received your letter in which you request an advisory opinion concerning an
element of the recently adopted Rules of the New York State Senate that seeks to restrict the
usage of cellular telephones for the purposes of taking photographs or recording audio or video.
The rule at issue states in relevant part that:
Cellular telephones shall not be used to take photographs, videos or
perform any recording function in the Senate Chamber, Galleries or
Lobbies, except those photographic and recording functions performed
by official Senate photographers and videographers, without
permission of the Secretary of the Senate (Senate Rule X, 4(a)).
As you are aware, it has been advised informally in response to inquiries by the news media that
the rule is, in my opinion, contrary to the Open Meetings Law, as well as judicial precedent. I
am confirming that contention in response to your request.
The Open Meetings Law applies to meetings of public bodies, and 102(2) of that statute
defines the phrase public body to mean:
any entity for which a quorum is required in order to conduct public
business and which consists of two or more members, performing a
governmental function for the state or for an agency or department
thereof, or for a public corporation as defined in section sixty-six of the
general construction law, or committee or subcommittee or similar
body of such public body.
Senator Hoylman
Page 2
In consideration of the Senates nature, functions and membership, it clearly constitutes a public
body required to give effect to the Open Meetings Law.
Section 103(d) was added to the Open Meetings Law in 2010 to ensure that the right to
record open meetings, with reasonable limitations, is guaranteed by statute (note that 103
contains two provisions denominated as subdivision (d)). Subdivision (d)(1) states in relevant
part that:
Any meeting of a public body that is open to the public shall be open
to being photographed, broadcast, webcast, or otherwise recorded
and/or transmitted by audio or video means.
Subdivision (d)(2) authorizes a public body to:
adopt rules, consistent with recommendations from the committee
on open government, reasonably governing the location of equipment
and personnel used to photograph, broadcast, webcast, or otherwise
record a meeting so as to conduct its proceedings in an orderly
manner.
To assist public bodies in the development of rules concerning the right of the public to
record open meetings, soon after the enactment of 103(d), the Committee on Open Government
prepared model rules as a means of recommending a means of complying with that provision.
The focal point of the model rules is based on legislative intent and judicial precedent and states
that:
Operation of equipment to photograph, record or broadcast a
meeting is permitted unless it is obtrusive, disruptive, or interferes
with the deliberative process or the right of persons in attendance to
observe or listen to the proceedings.
Although public bodies have the right to adopt rules to govern their own proceedings (see
e.g., Town Law, 63; Education Law, 1709; Village Law, 4-412), 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.
I note by way of background that, until 1978, there had been but one judicial
determination regarding the use of 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
Senator Hoylman
Page 3
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, following the enactment of the Open Meetings
Law, which became effective in 1977, the Committee on Open Government 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.
That contention was initially confirmed in a decision rendered in 1979. That case arose
when two individuals sought to use their tape recorders at a meeting of a school board, which
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.'
Senator Hoylman
Page 4
Because we find that a prohibition against the use of unobtrusive

recording is inconsistent with the goal of a fully informed citizenry,
we accordingly affirm the judgment 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).
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.
While Mitchell pertained to the use of audio tape recorders, 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:
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 (OMLAO-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.
Senator Hoylman
Page 5
Mitchell, supra, held that fear of public airing of ones comments at a

public meeting is insufficient to sustain a ban on audio recording.
Is Mr. Peloquins (or anyones elses) 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 Governments (Robert Freemans) well-reasoned
opinions supra and the court systems 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).
Based on the foregoing, it has been advised, for example, that a public body clearly has
the authority to adopt rules to prevent verbal interruptions, shouting or other outbursts, as well as
slanderous or obscene language. Similarly, I believe that a public body may regulate movement
in order to preclude interference with meetings that would prevent those in attendance from
observing or hearing the deliberative process.
In the context of the matter at hand, again, it is clear that the Senate, or any public body,
may prohibit activity that would be disruptive. Certainly, the Senate, by rule, could prohibit the
use of a cellular telephone by members of the public relative to the sound or noise that often is or
can be heard when the phone rings, when users of a phone speak into the phone, or even when a
message is received or sent. When the sound is audible, I would agree that it may be disruptive
and detract from the deliberative process. However, when the cellular telephone is used to
record public proceedings silently and unobtrusively, as in the case of its use in the Senate
gallery, a prohibition of its use in that situation would, in my opinion, be contrary to 103(d) of
the Open Meetings Law, as well as the judicial precedent that preceded the enactment of that
provision.
If you would like to discuss the matter or have questions, please feel free to contact me.
I hope that I have been of assistance.
Sincerely,
Robert J. Freeman
Executive Director
cc: Francis Patience, Secretary of the Senate

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C OMMITTEE M EMBERS

COMMITTEE ON OPEN GOVERNMENT

Honorable Brad Hoylman

Because we find that a prohibition against the use of unobtrusive

Mitchell, supra, held that fear of public airing of ones comments at a

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