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Q&A: Is Zoom Meeting an ‘Inspectable’ Record?

Fla. law, both for condos and HOAs, has some rules regarding meeting records and member sharing. But being somewhat new, Zoom meetings enter a gray area.

WEST PALM BEACH, Fla. – Question: Many associations turned to Zoom meetings due to COVID. While in-person meetings are now more prevalent, associations continue to use Zoom in conjunction with their in-person meetings.

If the public association meeting is recorded (I personally made the request) via Zoom, does the president have the right to state: “The recordings are made expressly for the president and secretary to aid them in producing the meeting minutes. The recordings are not made for general distribution.”?

As someone with a hearing disability, I find it beneficial to listen to recorded meetings in the quiet of my home even though I attend the meetings in-person. For the president to make an arbitrary decision without discussion seems improper. Continued use of Zoom meetings and their recordings might even improve the participation levels of condo associations due to the convenience of being able to replay the recording. – D.C.

Dear D.C. – I love Zoom meetings. I have found that since COVID began, the prevalence of Zoom meetings has resulted in greater board member participation and unit owner participation. I think it’s a win all around, and I am hopeful that the laws eventually recognize Zoom-only meetings as a clear legal option for community associations. (Right now this is a little bit of a gray area. While it’s clear that board members can participate via Zoom, it’s not clear that associations can mandate that be the only option for owners – although I think there are very good arguments that’s the case.)

You are effectively asking whether recordings of the Zoom meeting are inspectable association records. The answer to this question is no different than recordings of in-person meetings. The association has no obligation whatsoever to record Zoom meetings (or in-person meetings), but if it chooses to do so, whether the recording is an inspectable record may come down to whether it is kept long-term.

If you are in a condominium, the Florida Administrative Code, at Section 61B-23.002, states that audio and video recordings made by the board at its direction must be kept until at least the minutes of the meeting have been approved. At that point they may be discarded; however, if the board elects to preserve them, they are an official association record.

What this section does not say, however, is if such recordings are inspectable records between the time they are made and the time the minutes are approved, even if the board does not intend to keep them. The rule implies that they are not official records until and unless they are kept past the time the minutes are approved, but it does not say that explicitly – and so this is an area that may be the subject of litigation at some point in the future.

If you are instead in a homeowners association (HOA), then it really is a totally open question.

While the statute does not expressly say that meeting recordings are official records, it does say that the official records include “all other written records of the association not specifically included in this subsection which are related to the operation of the association.”

Does that include recordings of meetings? Are recordings “written” because they are electronically written into a digital file (probably yes)? Are they official records that must be kept, even if the only purpose is to keep them to assist with the preparation of minutes? (It’s not really clear if that’s the case – which is exactly why the Division of Condominiums addressed this issue in the administrative code.)

Ultimately, someone would have to litigate this issue to know for sure and, given that owners have an express right to record board meetings, that lawsuit seems extremely unlikely to ever occur.

When it comes down to it, that’s really the answer to your question. You have the right to record these Zoom meetings on your own, so really this is a moot point.

Yes, it may be easier and clearer to get a digital copy directly from Zoom; but if you watch the meeting on your iPad or iPhone, for example, you can simply use the screen record function and record the entire meeting for yourself. (If you’re not sure how to do this there are numerous guides online.) You don’t need the association’s recording and so, ultimately, it’s not worth fighting over.

© Copyright © 2022 The Palm Beach Post. Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condominium, Co-Op and HOA Living.”