Q. Is an association required to maintain a recording of a meeting as an official record?
A. “Thank you for your question. The answer is that a recording of a meeting is an official record until the recorded meeting minutes are transcribed and then approved, at which point the recording can be discarded,” says Jonathan Goldstein, a senior associate attorney with Haber Slade P.A. in Miami. “However, if the board elects to keep the recording, the recording remains an official record that must be accessible to the membership unless it is privileged.
“The Florida Condominium Act, at Section 718.111(12) (a), Florida Statutes, lists the various categories of official records which must be maintained by the association. An association must provide an owner with access to the records (a tenant is now entitled to access to a very limited scope of records) within ten (10) business days of receipt of a written request. After ten (10) business days of denied access, damages (actual damages or statutory damages accruing at a rate of fifty dollars ($50.00)/day for up to ten (10) days) will be awarded for a willful denial of access.
“While minutes of a meeting are official records, a tape recording of a meeting is not listed among the specified categories of records an association is required to maintain. However, the statute has a ‘catch-all’ provision for all other ‘written records.’ The Department of Business and Professional Regulation Division of Florida Condominiums, Timeshares, and Mobile Homes (the ‘Division’), a Florida agency that regulates condominiums, has adopted a rule, Florida Administrative Code Rule 61B-23.002, that specifically governs whether a recording of a meeting can constitute an official record.
“The administrative rule includes recordings of meetings among the official records, with limitations and, in most cases, only temporarily. Subsection (7)(b) of the rule provides as follows: ‘(b) Other records related to the operation of the association, which the association shall maintain as official records pursuant to Section 718.111(12)(a)15., F.S., or as that subparagraph may be subsequently renumbered, shall include, for example:…
‘3. Audio and video recordings made by the board or committee or at their direction. Except, however, recordings of board of directors, unit owner, or committee meetings shall be maintained as official records at least until the minutes of the meeting which was the subject of a recording are approved by the body authorized to approve said minutes. After said approval, the recording may be discarded; however, if the body authorized to approve said minutes elects to preserve the recording, it shall maintain its status as an official record under this provision. It is not the intent of this rule to require that such recordings be made but to require that if they are made that they be maintained at least until minutes of the meeting which was recorded are approved. This accommodates associations which record meetings only as an aid for preparing minutes of the meeting. Thereafter, recordings purposely preserved shall be official records.’
“Based upon this rule, the recording of the executive meeting by a director (assuming it was done with the rest of the board or committee’s knowledge or at the association or committee’s direction) is a record until the minutes of the executive meeting are approved, at which point the board can choose to keep them (in which case they remain records), or discard them. Alternatively, if the board decided to incorporate the recording into the minutes or attach them, then it would have to be kept as part of the minutes.
“If a quorum of the board attended the meeting and the meeting was not a meeting with legal counsel in anticipation of pending or threatened (contemplated) litigation, then the meeting should have been an open meeting, as opposed to a closed-door meeting. In such a case, the recording is accessible to the members while it remains a record. If the meeting was closed, with a quorum and without an attorney present, then that is a violation, but probably does not change the applicability of the Rule governing whether the recording is an official record. In most cases, committee meetings are also subject to similar notice requirements as board meetings.
“Assuming that the meeting is properly closed and privileged, then the recording is also privileged and need not be accessible to the membership pursuant to Section 718.111 (12)(c)(3)(a), Fla. Stat. because of its privileged nature. As an aside, it should be noted that the Florida Condominium Act seems to limit the right to have privileged closed-door meetings with legal counsel to meetings involving pending or anticipated litigation; however, in practice, the scope of the privilege is interpreted broadly by some given the confidential nature of attorney/client communications generally and the statutory evidentiary and work product privileges enjoyed by litigants including associations.”