A&A: Recording Meetings without Informing/Consent

Q: You recently stated in response to a question that there was no law against an attendee taping a homeowner association meeting without permission.  My question is:  can they do it without informing the Board of Directors or other attendees?

A: With respect to taking a homeowner association meeting without permission, the initial question would be whether the Board of Directors of a homeowners’ association is covered by the Brown Act.  I doubt that it is.  If it is, Government Code § 54953.4 would allow you to tape the meeting without permission unless the Board finds that the taping cannot continue without creating so much noise (or, in the case of video taping, illumination or obstruction of view) that it would constitute a persistent disruption of the meeting.

There is nothing in § 54953.4 that would appear to require that the taper provide notice to the Board or other attendees of the intent to tape.  Although the Board can order that the taping stop if it is or would constitute a persistent disruption, if the Board is and remains unaware of the taping it seems, by definition, that it is not creating the ruckus necessary to constitute a disruption.

If the Board is not covered by the Brown Act, then taping of a “confidential communication” without the permission of all parties is both a tort and a crime in violation of Penal Code § 632, punishable by a fine of up to $2,500 and a year in jail.

The question then becomes whether a homeowners’ association meeting could constitute a “confidential communication.”  If not, then you can tape without informing the Board or other attendees.  If so, then you cannot tape without informed consent (ie, knowledge of taping and permission to do so).

The California Supreme Court has held that a communication is confidential under section 632 if a party to that conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded.  Flanagan v. Flanagan, 27 Cal. 4th 766 (2002).  And section 632(c) defines the term “confidential communication” as a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

If the homeowners association is a “public gathering,” then it would be exempt from section 632.