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Volume 10 - Opinions of Counsel SBRPS No. 14

Opinions of Counsel index

Assessment review, Board of (hearings; meetings) (audiotape and videotape) - Real Property Tax Law, § 525:

Taxpayers or other interested parties may make audiotapes or videotapes of the hearings of the board of assessment review, so long as the taping is carried out unobtrusively and in a manner that does not detract from the conduct of the board’s public business.

We have been asked whether taxpayers or other interested parties may audiotape or videotape the hearings of the Board of Assessment Review [BAR], which are conducted pursuant to section 525 of the Real Property Tax Law. Of course, the BAR is required to prepare minutes of its hearing and file them in the office of the city or town clerk (§ 525(2)(a)), and these minutes might possibly be kept on audiotape or videotape. The question, though, is as to the right of the public to tape the proceedings.

We have previously concluded that BAR hearings, at which the complainant and assessor may give evidence regarding assessment complaints, are public meetings within the meaning of the Open Meetings Law (Public Officers Law, Article 7). As a result, members of the public may not be excluded from those hearings. On the other hand, the deliberative meetings of the BAR are quasi-judicial proceedings and, as such, are not open to the public (6 Op.Counsel SBEA No. 125).

The question of whether video or audio equipment may be used to record open meetings of public bodies was considered by the New York State Committee on Open Government in an advisory opinion (No. 2197 [March 5, 1993]). The Committee pointed out that there is no New York statute dealing with the issue. Judicial opinions on the subject have consistently applied two principles: that a public body may adopt reasonable rules for its proceedings, and that a public body may prohibit the use of recording equipment if, and only if, it is disruptive of the meeting.

In Mitchell v. Board of Education, 113 A.D.2d 924, 493 N.Y.S.2d 826 (2d Dept., 1985), the Appellate Division found that the Open Meetings Law did not allow a board of education to prohibit the use of tape recorders at its public meetings, since recording by means of hand-held portable tape recorders is not obtrusive. The Court rejected the argument that the speakers had a privacy interest in their own comments, since those who speak at public meetings “fully realize that their comments and remarks are being made in a public forum” (493 N.Y.S.2d at 827). The court went on to note:

Furthermore, although the Open Meetings Law provides that a public body shall take minutes at all open meetings, and that such minutes shall be made available to the public (see, Public Officers Law, § 106), the imposition of such a duty cannot fairly be construed as precluding all other methods of recordation (id.).

A similar conclusion was reached in Peloquin v. Arsenault, 162 Misc.2d 306, 616 N.Y.S.2d 716 (Sup.Ct., Franklin Co., 1994), where State Supreme Court declared null and void the Village of Tupper Lake’s “Recording Policy,” a blanket ban on video recording of village board meetings. The only justification offered for the policy was the “distaste” of board members for appearing on public access cable television, an argument which the court found insufficient to sustain the ban. The court did observe that rules placing restrictions on the use of video cameras might be needed to prevent them from being obtrusive or distracting. A total ban, however, was contrary to the “presumption of openness” in the Open Meetings Law.

From the above judicial opinions, we conclude that tape recording or videotaping of the hearings of the BAR is permissible, so long as it is carried out unobtrusively and in a manner that does not detract from the conduct of the BAR’s public business.

October 3, 1995