SMILE ---- YOU’RE ON CANDID CAMERA

In  a post 9/11 world, big brother is watching us like never before.  Walk into any business and you can bet you’re on camera being video taped.  Same thing goes while walking down any city street for that matter.    Indeed, many of us live in communities where there are security cameras all over the place watching our every move.  What happens when a unit owner in a condominium or HOA wants a copy of the video tape that recorded a scene from the common areas on a particular date and time?  Is the owner entitled to a copy of that tape?  What about unit owners who are uncomfortable knowing that another unit owner can get a copy of a video tape which shows them walking the common elements or perhaps even sitting by the pool in revealing attire?

There is no statute which specifically states that this surveillance tape is an official record of the association.  However, as for condominiums, Rule 23.002(9)(b), Florida Administrative Code, provides in pertinent part:

Audio and video recordings made by the board or committee or at their direction [are official records].

So, we know that if there is a recording of a meeting, made by the board or a committee, owners are entitled to a copy, at least until the minutes of that meeting are officially adopted.This still doesn’t answer the “surveillance” tape issue.  We do know however that both the condominium statute, co-op statute and the HOA statute have very broad language which basically makes any record available to the owners that relates to the operation of the association.  There are only very limited exceptions such as attorney/client privileged documents, information obtained by the association from approval or transfer applications and medical records of owners.  There is certainly an argument to be made that if The Florida Legislature did not want owners to get copies of surveillance tapes, the statute could have easily said so.  It doesn’t.

There is also a declaratory statement written by the Department of Business and Professional Regulation which holds that surveillance tapes that are not automatically “dumped” after 30 days and are then copied by the association, are official records that can be copied by the owners, at the owner’s cost. This statement does not address whether or not the surveillance tape is an official record if not specifically copied off of the hard drive by the association before it gets automatically dumped.

In my mind, surveillance tapes are recorded with cameras that were purchased with association funds.  They are stored on tapes or hard drives that were purchased with association funds, and they don’t fall within any exception to the official records statutes.  Moreover, they relate to the security of the property and therefore the “operation” of the association.  Therefore, these surveillance tapes are official records, subject to be examined and copied by unit owners. Finally, unit owners who know that their every move is being video taped by the association certainly have no expectation of privacy.

What’s your take?  Are you comfortable with any owner being able to see surveillance tapes of your community and get copies?  Should these tapes only be available for review if a crime or vandalism occurs?  Should the tapes only be reviewable by the police or through a subpoena?

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