Question: Because the minutes our homeowner association board distributes do not accurately reflect what is said at board meetings or executive sessions, several owners decided to tape the meetings for a record.
The board then issued a memo telling us not to record meetings -- or risk being sued by the board. It said that owners who tape board meetings are violating Penal Code Section 632 and offered as "evidence" a case titled People vs. Suite.
The board wants to adopt rules prohibiting audio and video tapings of meetings and begin fining owners who violate the rule. To ensure that no recording devices are brought into meetings, the board decided to meet in the private residences of individual board members and said owners entering the meeting room would be searched.
Some owners have decided to defy the board's orders and surreptitiously tape meetings. Do homeowners have the right to tape record meetings?
Answer: Yes. Homeowner association titleholders and members, regardless of the form of common-interest development, do have the right to tape record meetings. No law prevents titleholders or members from taping association board of director meetings whether openly or surreptitiously.
California Penal Code section 632 was originally enacted to prevent taping telephone conversations without consent of all parties for later use against one of the parties in that conversation.
Some association attorneys are using the case of People vs. Suite as the basis for denying owners the right to tape record board meetings. However, that case is no longer the law in California.
Two recent cases helped define the meaning of PC 632 as it relates to the expectation of confidentiality. As a result of those decisions, boards do not have the right to prevent the taping of association board meetings by a titleholder or member.
The test of what is confidential was decided by the California Supreme Court in Frio vs. Superior Court. The case determined that a conversation is confidential if a party to that conversation has an "objectively reasonable expectation" that the discussion is not being overheard or recorded. This is the standard that applies in California.
