Audio Tape Recordings ---- Official Records

Started by KathyF13 • 39 replies • 529 views

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KathyF13 (Florida)
Posts: 31

Posted:

I live in Florida and believe HOA homeowners do not fully understand how powerful the right to inspect records can be for them if properly executed by the homeowner to the HOA.

My attorney and I were granted a successful outcome on March 31, 2023 in the state of Florida regarding a lawsuit we filed about my right (homeowners rights) to inspect/copy an audio tape recording from a board of directors meeting that I did not attend and was defamed.

A judgment was granted for plaintiff (me) that an audio recording is an official record and cannot be destroyed until it is reduced to an official written form. We set precedent, an article has been published online, and shortly the case will be published in Florida Law Weekly.

The HOA legal argument was that an audio tape recording is not a "written record", so therefore the tape recording was not an official record subject to Florida Statutes and they did not have to allow me to inspect/copy the tape.

My attorney argument was that an audio tape recording is a "written record", so therefore the tape recording was an official record subject to Florida Statutes and the HOA did have to allow me to inspect/copy the tape.

I believe with all my heart that asking for official records we are entitled to by law as a member of an HOA is absolutely necessary for homeowners to understand how powerful it really is and how powerful they are!

HOA property managers, HOA attorneys, and HOA board members are not going to encourage homeowners to be well versed on what is actually going on with your dues and their decision making.

Each and every one of our records requests as homeowners gives us information we want to know and more importantly, we are legally entitled to request. Some things, we are not entitled to request and cannot expect to receive. So, it is simple, do not request those type of records.

TerriS6 (California)
Posts: 3,284

Posted:

Hi Kathy, I just saw your posts on the other thread. Congratulations on your win. In California the permission of all present must be obtained before recording a conversations. When there is a Zoom recording it advises you on the screen and at our recent meeting it was repeated several times during the meeting. When I requested the recording copy I advised the board to preserve the recording. They have never responded to my request. I filed my small claim on 6/21 and subpoenaed the director who was showing the legal invoices to everyone. It seems if they need your permission to record, a person would have some separate right to a recording. We have no rules against recording so there is no reasonable explanation for a denial which they are supposed to explain in writing if they refuse. You are correct about the records. You will a lot of “they did what?!!!!”

KathyF13 (Florida)
Posts: 31

Posted:

Thanks on the congrats TerriS6.

In Florida we can record board meetings without asking permission. The videotaping is up for debate whether it would cause someone problems or not.

As soon as my lawsuit began they stopped recording board meetings by the HOA and stopped forever I guess-since they still do not do it. But members who attend the board meetings record the meeting. It is extremely useful to listen to after the meetings. Especially for records requests.

Would you mind clarifying for me. Have you initiated a lawsuit to obtain records you have asked for and not been given? Such as the audio tape of the board meeting or other records. Or are you thinking about it?

K

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KathyF13 on 06/22/2023 8:03 PM
Thanks on the congrats TerriS6.

In Florida we can record board meetings without asking permission. The videotaping is up for debate whether it would cause someone problems or not.

As soon as my lawsuit began they stopped recording board meetings by the HOA and stopped forever I guess-since they still do not do it. But members who attend the board meetings record the meeting. It is extremely useful to listen to after the meetings. Especially for records requests.

Would you mind clarifying for me. Have you initiated a lawsuit to obtain records you have asked for and not been given? Such as the audio tape of the board meeting or other records. Or are you thinking about it?

K

I filed a small claims action this week based on unreasonable and untimely denial of association records all concerning one board meeting with 30 members in attendance; the minutes, the audio recording, and the legal invoices that were shown to all the members. It also includes 5 violations of the Open Meeting Act, discussing for 30 minutes items not on the agenda provided with the meeting notice.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 06/23/2023 3:56 AM
I filed a small claims action this week based on unreasonable and untimely denial of association records all concerning one board meeting with 30 members in attendance; the minutes, the audio recording, and the legal invoices that were shown to all the members. It also includes 5 violations of the Open Meeting Act, discussing for 30 minutes items not on the agenda provided with the meeting notice.

I see the D-S web site says actions to obtain records may be brought in small claims court. But I do not see that small claims court has jurisdiction over violations of the CIC Open Meetings Act. I remember in another recent thread you said the small claims court's judge ordered the Board to get instruction in the Open Meetings Act. If you have a link to a site that says an owner may address violations of the CIC Open Meetings Act in small claims court, then would you please post it?

KathyF13 (Florida)
Posts: 31

Posted:

Terri,

Are you representing yourself or do you have an attorney?

Do your bylaws have a 'presuit mediation' requirement before a lawsuit is filed?

KathyF13 (Florida)
Posts: 31

Posted:

Terri, I also forgot to ask, "Did you send your record requests to the HOA by Certified Mail Return Requests?" or how were they sent to the HOA?

TerriS6 (California)
Posts: 3,284

Posted:

Civil Code 4955 allows a "civil action" for violations of the Act. As long as the amount is kess than $10,000. or you just want an injunction, small claims is the place.

TerriS6 (California)
Posts: 3,284

Posted:

The HOA has pre-suit requirements but members do not.

TerriS6 (California)
Posts: 3,284

Posted:

I sent them by email. Their denial of the invoices came to me by email.

TerriS6 (California)
Posts: 3,284

Posted:

No attorney although I have received advice in the past for which I was reimbursed in court $150. the first time and $400. the second time.

TerriS6 (California)
Posts: 3,284

Posted:

KathyF, be prepared for your board to start bashing you at meetings, if they haven't already.

KathyF13 (Florida)
Posts: 31

Posted:

Mine was also handled in small claims court. I'm rooting for you.

I did learn during the process that allot of times what I thought something was as a layperson, was not what I thought because the legal system thinks differently.

I hope you keep us up to date how it goes, as much as you can reveal, without jeopardizing your strategy.

KathyF13 (Florida)
Posts: 31

Posted:

Terri,

I am literally laughing and chuckling out loud. You guys have no idea of what they are doing and have done. How many rounds did Rocky go before his final movie?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 06/23/2023 5:23 AM
Civil Code 4955 allows a "civil action" for violations of the Act. As long as the amount is kess than $10,000. or you just want an injunction, small claims is the place.

For HOA disputes, I do not think California small claims court can issue injunctive relief unless the relief pertains to records or election disputes. See:

https://yourlegalcorner.com/blog.asp?sel=post&v=34

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?secti116.220.&lawCode=CCP ("The small claims court has jurisdiction in the following actions: ... For an injunction or other equitable relief only when a statute expressly authorizes a small claims court to award that relief.")

and other sites.

Anyway, I know this is hard for an owner (yourself) to do, and you do have a prior small claims judge ordering the board to get training in the Open Meeting Act. Let's see where this goes.

TerriS6 (California)
Posts: 3,284

Posted:

Yes it can, see 4955.(a)

TerriS6 (California)
Posts: 3,284

Posted:

The completely irresponsible strategy of the board is to jump off the pier knowing there is no water below. Almost all my claims have been strictly a matter of law but do they ever read the law? No! Then they spend evidently thousands of dollars to defend the claim instead of reading the law and following simple directions.

KathyF13 (Florida)
Posts: 31

Posted:

Quote:

Posted By TerriS6 on 06/23/2023 6:20 AM
The completely irresponsible strategy of the board is to jump off the pier knowing there is no water below. Almost all my claims have been strictly a matter of law but do they ever read the law? No! Then they spend evidently thousands of dollars to defend the claim instead of reading the law and following simple directions.

Terri,

I think there is a fundamental misunderstanding for many homeowners about the relationships of an HOA and what an HOA actually is. I will elaborate.

An HOA is a corporation. THINK CORPORATION!!!! The HOA attorney and property manager are contracted to work for the corporation, not for the individual homeowner of the HOA.

The HOA Board of Directors is elected by the members and are the ones that have a duty toward the homeowners, not the property managers and the attorney.

So, let's dig deeper. What is the most effective way for the HOA attorney to make allot of money from an HOA contract. You guessed it, "CONFLICT and STRIFE" between the board and homeowners. Property managers are married to the lawyers in this dynamic and the board members trust their so-called expertise they hired them to advise them.

Sadly, many-not all, homeowners that are elected to become board members are not qualified in business, finances, or the needed attributes to avoid litigation risks, and blindly have to give up critical thinking because of lack of corporate experience.

I think HOA homeowners are starting to wake up to the fact that the authority and power wielded by a board member is not a healthy condition for the HOA because they neglect or do not understand their fundamental duty to those they were elected to serve-- aka the homeowner.

This is just a tiny bit of what I would like to write.

TerriS6 (California)
Posts: 3,284

Posted:

Kathy, that is a fact. I've long thought the association's attorney purposely gives bad advice to the board so they will fight everything. And then we, the consumers, get blamed for atty fees, get called bad neighbors, and the so-called "good" neighbors haven't informed themselves what the issues are about, they assume their "friends" on the board are doing the right thing. Just as most HOA attys think: boards are good, members are bad. And all we want to do is protect our investments and quality of life.

JackieB4 (California)
Posts: 398

Posted:

Kathy & Terri, You each beautifully summarized the quicksand many HOAs find themselves in. The legal system makes the money ($$$) "conflict and strife." My 2 suggestions are:
Get your documents professionally on a community web sight(PORTAL) & starts educating/recruiting for a new BOD @ next election. Supposedly what doesn't kill you makes your stronger.

SheliaH (Indiana)
Posts: 6,964

Posted:

I'm glad for you, although this is why I prefer to ban recordings of meetings. The law is still evolving on this (is this a one party or two party state, how do you store the recordings to preserve them and for how long, what if someone doesn't want to be recorded, how do you prevent slicing and dicing of the recording once someone is given a copy, blah, blah, blah?)

Your intentions were honorable, as homeowners should know why and how the board does what it does - and since they do serve at the pleasure of the homeowners, no board member shoukd object to open board meetings, minutes should be made available as soon as they're approved, Any homeowner should be able to go to any board member and ask questions about an association issue. Boa4d members should also assume that these days everyone has a camera, and so you should be honest and know how to behave in public (that is, no cussing out or threatening homeowners unless you want to wind up on Tiktok or Facebook).

This also applies to homeowners and if more were as diligent as you've been in staying informed of association affairs, your board would have behaved from the start and this wouldn't be necessary. I don't know what prompted them to record the meeting in the first place - the secretary should be taking better notes and the president should be more responsible in making sure everyone stays on topic and not interrupt or have side conversations so they'll know what's being said and what they're voting on.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Kudos to you, KathyF, for getting access to the audio recordings. And this is part of the larger issue that too many owners in HOAs confront: the ability to inspect & have copies of almost all association records.

Sue, minutes should be posted on a website as soon as board approved. But if they aren't, and I don't know if any state requires that, I think that all states permit owners to write the Board or management company to request a copy. In Calif., if th request is refused, Owners may go to Small Claims court as discussed by Terri. The is the case to in FL as KathyF shows. What about other states: what canon owner do if the Board refused s to permit owners to inspect records say in SC or NC, in VA or TN. In Texas? Arizona?

Say, KathyF, is the issue that concerned you, so you wanted the recording, something that was recorded in the meeting minutes? Or was it a topic on which the Board took no action so no need to be in the minutes?

KathyF13 (Florida)
Posts: 31

Posted:

Say, KathyF, is the issue that concerned you, so you wanted the recording, something that was recorded in the meeting minutes? Or was it a topic on which the Board took no action so no need to be in the minutes?

Kerry thank you.
When I asked for minutes after the board meeting that had an audio recording, I was provided "Draft" minutes documentation. Draft minutes are not official records. Board approved minutes at a board of directors meeting are official records. In our HOA these minutes from the previous board meeting are approved at the next board meeting, except for annual meetings, which are approved annually at the next meeting.

After I read the "Draft" minutes, I then requested the inspect/copy audio tape recording of the board meeting I did not attend because the draft minutes indicated I had been defamed at that meeting. That was the point that the HOA denied my request stating an audio tape recording is not a "written record" and therefore not an official record they were required to provide.

Here is an interesting part of the saga. They refused to inspect/copy the recording and risked litigation. Yet, they provided me with a copy/inspect audio from a meeting before this one.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Defame means to harm one's reputation with a lie. If what was said is not a lie, there is no defamation.

KathyF13 (Florida)
Posts: 31

Posted:

Hi John.

Defame is to harm's one reputation, you are correct, and the other part of to defame involves the definition of slander and libel.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KathyF13 on 06/23/2023 11:51 AM

Here is an interesting part of the saga. They refused to inspect/copy the recording and risked litigation.

Because of the defamation allegation, the Board was damned if it did and damned if it did not, no?

Regarding defamation in general, for an owner to be defamed, not only must a lie be stated, but the owner would have to show how she was damaged financially by the lie. Often this is no easy feat.

Aside: I have seen so much retaliation at HOAs that I think legislatures should add anti-retaliation sections to the state statutes, protecting any owner who asserts their good faith belief that the Board or an agent of the board violated the governing documents or state law. A number of whistle-blower types of statutes have anti-retaliation clauses.

KathyF13 (Florida)
Posts: 31

Posted:

Quote:

Posted By ElleN on 06/23/2023 2:39 PM

Posted By KathyF13 on 06/23/2023 11:51 AM

Here is an interesting part of the saga. They refused to inspect/copy the recording and risked litigation.

Ellen- I think I need to make this very clear for the reader.

The lawsuit was strictly about whether an audio tape recording is a "written record" or is not a "written record", which means, was it an official record or not an official record that a homeowner can inspect/copy.

If it was a written record, it is considered an official record available to inspect/copy. If it was not a written record, it was not considered an official record to inspect/copy. This was the legal argument between the plaintiff and defendant.

Nothing more, nothing less.

There were no legal allegations against the HOA for defamation.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KathyF13 on 06/23/2023 3:05 PM

The lawsuit was strictly about whether an audio tape recording is a "written record" or is not a "written record", which means, was it an official record or not an official record that a homeowner can inspect/copy.

I thought this ended up being a pivotal issue, but it is not what initiated the lawsuit. Isn't something like the following what occurred?

You wanted a certain HOA record.

The HOA refused to provide the record. The HOA also pointed out it had already destroyed the recording.

You lawyer up and sue the HOA.

During court proceedings, the HOA says it does not have to provide the record, because in the HOA's opinion, it is not a "written" record. The Florida HOA statute (for owner access to HOA records) covers only "written" records.

Your attorney said, "Nope. It is a "written" record. Here's why... "

The judge agrees with your attorney.

The HOA says, okay, but as we said above, now the problem is that the HOA already destroyed the digital thumb drive (or whatever) with the recording on it.

The judge rules for you.

TerriS6 (California)
Posts: 3,284

Posted:

I know Kathy’s issue was not defamation…but you don’t have to prove damages if it’s slander per se or libel per se…that is, on it’s face.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 06/23/2023 4:23 PM
I know Kathy’s issue was not defamation…but you don’t have to prove damages if it’s slander per se or libel per se…that is, on it’s face.

Right, and specifically in Florida, an accusation of criminal conduct, for one, has a good chance of qualifying. But as I sit here and read Kathy's posts, I am pretty sure no such defamation per se happened. If it had, the attorneys would have pursued it. Which is maybe why Kathy is politely pulling back (my opinion) from her first mention of "defamation."

KimberlyH7 (Florida)
Posts: 12

Posted:

@KathyF13 Hi KathyF13,

My Florida HOA has banned recording Zoom meetings, claiming they have the right to establish "reasonable rules" for recordings. This new rule was created after I used a private recording app (MeetGeek.ai) to record a meeting and shared its automated notes with the Property Manager, hoping they’d help her draft better minutes.

Here’s the situation:

- I gave more than 24 hours' notice before recording and asked the HOA to enable Zoom’s recording feature. The Property Manager said it wasn’t available.
- I used MeetGeek.ai to log in to the Zoom meeting and record because weekday midday meetings conflict with my work schedule.
- The meeting minutes are vague and don’t communicate key details or decisions, leaving members uninformed.

At the next HOA BOD meeting, the Property Manager (PM) and BOD implemented new rules, in direct response to my recording:

1. Prohibited virtual recordings entirely, PM saying their attorney advised it was within their rights.
2. Required all Zoom attendees to identify themselves and their units or be removed (we never had issues with non-members logging in).
3. Stated that MeetGeek app isn’t allowed as it is not a "member" even though it shows my name and they know it's my app (they were notified and stated they knew it was mine, never asked any IT Security questions).

They voted these rules in with no member discussion or visible board debate during the meeting, even though "Meeting Recording" was listed on the agenda. This suggests they deliberated in private, outside of an open meeting. They do this frequently because I attended 6 monthly meetings and there were frequently "surprise" topics they that no one knew what they were talking about but they did. It's in the private "Board Packet", created by the PM.

They say we're only allowed to record in-person and claim this is their right to ban as part of establishing "reasonable rules regarding recording process". Their own new process of verifying all virtual participants has created far more of a meeting disruption than the recording ever did.

LEGAL QUESTIONS to be answered/defined:

1. Does Florida law allow HOA members to record virtual (Zoom) board meetings, just like in-person meetings?
2. Can a member use a recording app, like MeetGeek.ai, as a proxy to record if they cannot attend or note take?

Can you recommend an affordable attorney/firm for guidance? I’ll handle most of the work myself to save costs. I believe there was another Florida case requiring an HOA to share thier recording with a member (her attorney possibly from Fort Pierce), but I can’t locate it again. I have also read through your case.

I’m in Martin County, Florida.

Thanks!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Kimberly,

Forum rules will prevent the naming of firms.

Suggest you create an email account for this purpose and post that email on this site so Kathy can give you specifics.

TerriS6 (California)
Posts: 3,284

Posted:

Nobody can stop you from recording a program on your own device in your own home for your own use.

TimB4 (Tennessee)
Posts: 21,059

Posted:

NOTE: There is a two party consent rule to record audio, meaning that everyone has to agree to the recording.

For HOAs, this is typically done by announcing the intent to record at the beginning of the meeting.

TerriS6 (California)
Posts: 3,284

Posted:

Yes, the only way to withhold consent is to leave the meeting. All should presume they are being recorded on a Zoom meeting. And nobody can make a rule that you can't record a meeting in your own home from your screen for your own use.

DeanJ
Posts: 1,786

Posted:

Perfect.

The board should adopt rules concerning personal conduct at board meeting and then record them. The board can replay the recording to the owner st their appeal hearing.

TerriS6 (California)
Posts: 3,284

Posted:

In our association, the board can only make rules applicable to the common area.

KimberlyH7 (Florida)
Posts: 12

Posted:

Tim, I am new. Thank you for the instruction!

I CAN BE REACHED AT (this is a side account):
legal at home-bites dot com

As far as "two-party consent" is applied to recording FLORIDA HOA meetings... In Florida, HOA meetings are considered "open", not private, and they "take place in a public forum in which neither party has a reasonable expectation of privacy". Wire-Tapping and 2-party consent laws do not apply to HOA meetings that members are invited to. By law, members are allowed to video or tape record member meetings.

At the beginning of the meeting, it is good to announce the meeting will be recorded. We are required to provide at least 24 hours notice to the HOA/Property Manager that the meeting will be recorded so they can do that. It's a good rule.

I don't think recordings should be shared with people that wouldn't be privy to the meeting. I doubt sharing on social media would hold up in court. It is unclear if open meeting recordings could be used in court. I am unable to find precedent for this either way. Maybe "Smiley vs. Florida". Sharing recordings with others that are allowed to attend the meetings is legal, although is NOT an official meeting record (only the Board can make something an official meeting record).

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By TerriS6 on 11/29/2024 7:41 PM
In our association, the board can only make rules applicable to the common area.

So if I want to use my propane grill on my balcony and crest a fire hazard, that’s ok?
If I want to put my drag racing car in my garage with no mufflers and operate the engine at excessive noise levels, that’s ok?
If I want to raise 500 chickens in my unit, that is ok?

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By DeanJ on 11/30/2024 7:25 PM

Posted By TerriS6 on 11/29/2024 7:41 PM
In our association, the board can only make rules applicable to the common area.

1. Yes
2. County has a noise ordinance…and we do have a drag racing car.
3. You don’t want 500 chickens.

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