A bill pending in the New York Legislature would allow the public to photograph, videotape, and audio record public meetings in New York, providing better access to government deliberations and information. It would impose two minor conditions: the photographing or recording activity must not be disruptive, and the public body holding the meeting can regulate where equipment and personnel are located in the room. The bill is an amendment to section 103 of the New York Open Meetings Law, which gives the public a right of access to the meetings of a large number of government bodies at the state and local level.
Judicial decisions in New York have already indicated that the public may use unobtrusive recording devices in public meetings and have influenced Missouri and North Dakota to provide the same recording right. In Mitchell v. Board of Education of Garden City Union Free School District, 113 A.D.2d 924 (N.Y. App. Div. 1985), the court reasoned that allowing the public to use recording devices at public meetings may provide a better way to document what transpires at the meetings than merely using pen and paper. The court expressed that
[a] contemporaneous recording of a public meeting is undoubtedly a more reliable, accurate and efficient means of memorializing what is said at the proceeding. Once the information and comments are conveyed to the public, it should be of no consequence that they may subsequently be repeated, by means of replay, to those who were unable to attend.
The pending amendment would codify not only the public's right to record a public meeting, but the right to “broadcast” the resultant media, including through "transmission by cable.” The legislature clearly had in mind traditional forms of media distribution, including over the air broadcast television and cable television. Can the bill be read to include the right to webcast public meetings? I’d argue yes. But why use such analog-specific language when the purpose of the amendment was, in part, to utilize technological advances to "give effect to the policy of open and public government proceedings"?
The bill could be improved by including some reference to digital distribution, including simultaneous broadcast over the the Internet, a distribution channel that utilizes, in myriad combinations, radio waves and various other wavelengths of the spectrum, coaxial cable, fiber optics, telephone wires, and so on.
In any event, the ability to record and broadcast public meetings is an extremely powerful way of holding government accountable. The message the law sends is that government works better when citizens are engaged and the lawmaking process is transparent and open to public scrutiny. If the amendment passes, tech savvy New Yorkers will have the benefit of utilizing their cell phones, palmcorders, and MP3 recorders to do original investigative reporting and fact gathering with the full support of the law.
To read the pending legislation, go to the New York Legislature’s bill tracker and type in “S2053” for the Senate version or “A1111” for the Assembly version. For general information on New York's open meetings laws, see our legal guide section, Open Meetings Law in New York.
(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)