Tuesday, February 17, 2015

Privacy Considerations

The following information is specific for the State of Georgia.  As always, consult with legal counsel, whether or not you are located within Georgia. 

On occasion, a homeowner attempts to record the proceedings of a Board meeting.  If the Board prohibits this, is that a violation of an open meetings act?   The confusion is over the nature of the meeting being conducted.  While the meeting is a governmental function, it is not a public governmental event.  It is a private proceeding for a private corporation, and not open to the public.  Members of the Association may attend, but not the general public.

Because of this, the open records act does not apply.  In a public setting, the use of a recording device only requires the consent of one of the parties directly involved.  In a private setting, everyone must agree to the recording.  The Board meeting often only involves conversation between Board members, with silent observation by homeowners.  If someone in the audience wishes to make a recording, assent needs to be obtained from every Board member present.  Out-of-state participation (via telephone, Skype, etc.) muddles the situation, since privacy laws from other States may be triggered. 

We must also weigh the privacy expectations of other homeowners in the audience.  Since the meeting is not considered a public event, anyone accidentally recorded in also has a potential claim against the recorder, and against the Association for permitting the recording.  Add to this the possible presence of an underage person, and you really have a mess. 

In the age of social media and the desire to accommodate busy schedules, caution is key.  Even the best intentions can result in distorted messaging that could lead to claims of slander.  Court cases have been lost because of unofficial recordings that embellished the official Minutes of Board meetings. 

The same privacy expectations translate over into the surveillance drone arena.  Georgia law prohibits a person from going on or about the premises of private property for the purpose of secretly observing activities.   If your community wishes to use drones as a means of compliance monitoring, it needs to be very open with the homeowners.  You may possibly need to gain consent before implementing this technology.   Rely heavily on third-party experts to navigate this sensitive and timely issue!

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