Recording HOA Board Meeting
I have read 33-1804 several times and I find it ambiguous. In one sentence it says “Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open.” The next part seems to contradict the first – “The board of directors of the association shall not require advance notice of the audiotaping and videotaping and may adopt reasonable rules governing the audiotaping or videotaping of the open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its use as evidence in any dispute resolution process.
My question is – can the board set up a camera and at the same time prohibit member(s) from using their own video equipment from recording an open board meeting – and then only allowing members to view the “unedited” video to use as evidence in any dispute resolution? And, if there is no “dispute” to be resolved, can the board simply say “nope, you can’t see the video?”
Thanks
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Dave;
If the association choses to record all of the meetings themselves and thereby preclude any individuals from video or audio taping then they must make the unedited recording available to all homeowners without exception. They also cannot place any restricting on the use of that recording as evidence in any dispute resolution. The prohibition on and restriction on the use of the recording is after the fact. It must be made available to all homeowners upon simple request. If you ask for it, they must provide it.
I included this provision in the law in 2017 if you want more detail, or have more questions please feel free to follow up.
Thanks
Dennis
Honestly I’m not sure why the law says if the board records, homeowners can be precluded from recording. If that language was simply removed so both could, you wouldn’t have the problem of Boards precluding members from recording, then not providing the recordings, forgetting to turn on the camera, or making members jump through hoops to access them. It should have been left at imposing some rules about recording such as set up and position of equipment. The example of if the board audio records then you can video record doesn’t make sense either as the video records the audio too (as you pointed out in your example if the board videoing so you can’t audio) so unless you’re simply recording the image, but not the sound, you’re recording audio too. As AZ is a single party state, the ability of boards to preclude members from recording just makes it overly confusing as Mr. Green pointed out. Both members “and” (not “or”) should be allowed to record. It makes it seem silly that the board can’t ask you to give them notice you are going to record, but then give them the ability to prevent you from recording.
Michael,
While I understand your concern the fundamental issue is that board cannot restrict any homeowner from recording not only because we are a one party state but because of the argument that board meetings are private functions and technically not a public area, without prior authorization or notice. While the board may prevent homeowners from recording, they must record it themselves and make an unedited copy available to any community member upon request. This is a two-part condition, they have to record it and they must make a copy available to any member. While I have seen boards accidentally forget to turn on the recorder or claim that technical difficulties lost the recording, that in fact causes them to violate the law because they cannot provide a copy to homeowners. If they are recording the meeting for the community, they have a duty to make sure that the recorder is turned on and properly recording the meeting periodically throughout the meeting. If you record the meeting you have no such responsibility nor do you have any obligation to provide your recording (your property) to the association. Nothing stops an association from recording the meeting for their private use, as long as homeowners are allowed to record on their own. The language in statute is always a negotiated product and seldom the work of only one organization. While I drafted this bill from the beginning, I also negotiated the language of this bill with all the HOA industry trade groups and this was the final product.
The key point in all of this is technical or human error in recording the meeting does not exonerate the board from the obligation in law that they provide a copy of the recording to any member upon request.
Dennis
Hi Dennis,
Thanks for your quick reply. What if the HOA decides to audio record only. Does that preclude us from using a video camera?
Our HOA is very secretive and deceptive and they do not want any (correct) record of their actions. One board member resigned last year and in his resignation he stated the reason was that the meetings were being recorded and he was “afraid” that the recording(s) would be used in a lawsuit.
The homeowners want the recordings, especially video recordings.
We suspect that, if the BOD decides to do their own recordings, the recordings will somehow become “unusable” and/or we’ll have to fight to have them available.
Thanks,
Dave
Dave;
I’m not an attorney and connote provide legal advice. I put that language into law and we were very careful about how we structured that language. The statement uses “audio or video recording” throughout and as such if the association audio records the meeting they can preclude anyone else from audio recording the meeting. But that would not preclude anyone from video recording a meeting. Conversely if the association video records a meeting that would preclude members from both audio and video recording the meeting because the video recording also includes audio recording.
Your point about trust is very important. I have had one community preclude its members from video recording because it was providing that service, then failed to produce a recording because the equipment failed in one case and the recorder was never turned on in the other. This is no longer hypothetical it really happened. By assuming the responsibility of video recording and denying anyone else’s right to record the meeting, the association also assumed the responsibility of actually producing the legible recording, the association in my opinion violated the law and could be held accountable to that act.
The bottom line here is that we are a single party state and anyone can record anyone else without their permission. While everyone hates to be recorded, in many cases it is the only way to curtail the verbal abuse and issues that arise at these meeting by either the boards or the members.
The purpose of this law is simply transparency. Just know that what you say or do either as a board member or homeowner at a meeting can and will be used against you if you violate the law. It can also exonerate you if you are accused of saying or doing something that was not true.
Litigation was not my primary purpose in drafting this language, it was to provide a mechanism to share the meeting with those that were not in attendance. With this tool homeowners whose busy schedule, or small children, or physical health issues that prevents them from attending the meeting in person, can view the meeting for themselves at their convenience and see what is going on in their communities.
Thanks
Dennis
Hey Dennis,
Thanks again for responding.
The board did preclude me from recording and had their own camera. When asked how we could view the recording they made they told us we could go to the clubhouse and watch it on a computer. They will not provide a thumb drive or any other means for anyone else to watch it – members will have to go with a board member and watch it.
Dave
Dave;
The law is specific and states that the association must make the unedited recording available to any member upon request it does not say may view the recording upon request. That means that they must provide a copy to any member that request a copy. Your association is violating the law. This is language that I specifically negotiated and had put into statute, so I think I know what I’m talking about.
Dennis
Hi Dennis,
I have requested a copy of the Feb 2020 board meeting via email to the HOA president. At the March meeting he told me that he responded. I never received his response and have requested via email that he resend it. He told me that they were going to put a “link or something” on our website to view the meetings. I doubt this will ever happen. Others have also contacted board members to view the recordings to no avail.
What now?
Dave
Hi Dennis,
A couple of us are getting ready to file a complaint with ADRE re the tapes the BOD made and will not provide copies to any of us. I have filled out the forms and have included an email thread between the property management company (Amcor). Is there anything I should know or be prepared for? Should I have an atty review the forms?
Thanks,
Dave