Submission Date:
Question:
Under the executive order, the modifications to Open Meetings Law meant we (I'm asking for several libraries in our system) record our Board meetings.
How long does a library (public or association) or a cooperative public library system have to keep the recording of board or committee meetings ? Looking at http://www.archives.nysed.gov/records/local-government-records-schedule-browse?combine=meeting+recording, it states:
"Four months after the transcription or minutes have been created"
Transcribing could be challenging, particularly for smaller libraries, so we were relieved to read that once minutes were created, we might not have to transcribe (hopefully we are reading that correctly).
However - our question is about the placement of the word "or". Is it:
Option 1: Once transcribed, keep for four months. Once minutes are created and accepted (which might be less than four months - in our case, it would be at the next board meeting), you can delete recording.
Option 2: Whether transcribed or minutes created, keep the recordings for four months.
Under option 2, it seems like there is a higher standard for meetings. Pre COVID, our board meetings would occur, open to the public but usually no public in attendance, and the only "evidence" of the meeting would be the minutes. Now, we are required to keep the recording for at least four months - which isn't a huge hardship but curious about the rationale behind that.
Thank you!
Answer:
Before attempting to answer this one, my team and I looked to see if anyone else "out there" has tackled this question.
We scoured the usual places (NYS Empire Development's COVID site, Committee on Open Government, NY Archives, NYLA, etc.), but my staff and I didn't find anything right on point. That said, the COVID landscape changes fast, so please let us know if you find anything, and we'll post an update to this answer.
And with that shameless disclaim/plea on the record, here is my answer:
As I read it, the currently-governing Executive Order[1] requires an entity subject to the Open Meetings Law to keep the recordings until they have been transcribed—not just until the minutes have been created.
Here is my reasoning: Executive Order 202.1[2] changed the Open Meetings Law as follows:
...to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. [emphasis added]
Although the normal application of the LGS-1 would allow for the recording to be erased upon creation of the minutes—just as the member points out—the Executive Order is an overlay that super-cedes (or at least, exceeds) normal record-keeping requirements.
I realize this means a library that can't afford to transcribe the recording any time soon will have to keep the audio around. It's possible that the state, after considering the fiscal reality of the conditions the "later transcribed" condition imposes, may eventually tinker with the requirement, perhaps simply insisting the audio be retained for a certain time after the minutes are generated.[3]
I am leaning on the side of retention, and not taking the easy way out by swapping it out for creating minutes, because access to the process, in all its glory, is the default purpose of the law. Further, Committee on Open Government Advisory Opinion has stated that while masks and social distancing remain requirements, entities subject to the Open Meetings Law must be making the proceedings contemporaneously available via audio or video[4]. So with all that, I have to err on the side of retention, access, and transparency.
Fortunately, digital sound file storage is not too costly these days.[5]
Thank you for a thoughtful question.
[1] Found at https://www.governor.ny.gov/news/no-2021-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]
[2] Which as of this writing, is extended through December 3, 2020, by Executive Order #72, found on 11/17/20 at https://www.governor.ny.gov/news/no-20272-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]
[3] This sounds like a nice ask to go out from a library advocacy organization. "Please, Mr. Governor, can you waive the estimated $[AMOUNT] in estimated transcription fees incurred the same year when many localities are taking COVID-induced hits to their budgets?" I'd sign that letter in a heartbeat.
[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]
[5] Finding the budget to properly compensate qualified people to manage that storage is another question!
Tag:
Board of Trustees, COVID-19, Emergency Response, Executive Order, Open Meetings Law, Record Retention, Streaming
