Should committee meetings be recorded?

One year ago, on 24 March 2020, the share price for Zoom Video Communications, Inc closed at US$135.18.  On 19 October 2020, the price peaked at $568.34.  I played a small part in that when I subscribed to its Pro licence a few days after our office closed in response to the developing COVID-19 pandemic in late March 2020.

There was an obvious need for remote conferencing with my colleagues and clients.  At the height of the restrictions imposed in response to the pandemic, no more than two people could ‘gather’.  Every strata manager and committee I worked with quickly shifted to holding meetings electronically.

While these restrictions have been reduced, electronic meetings have now become the norm.  In October 2020, the Queensland Government introduced legislation to allow committees to adjust the usual rules for how meetings could be called and held to enable electronic attendance and participation.  That legislation was made retrospective to 19 March 2020 to regularise the quick and sensible ways strata managers and committees had adapted to the crisis.

But as one solution is found, other problems arise.  Electronic meetings have raised new challenges.  Should these meetings be recorded, and what happens with that recording?

• The legislation has adapted

The drafters of the Body Corporate and Community Management Act 1997 (Qld) were accustomed to important meetings being held in person.  The features of that attitude are evident in the legislation that had required a voter to be present at a general meeting in person, by proxy or through the submission of a voting paper.  Could those drafters have anticipated that rise and ease of video conferencing in the near future?

Only a few years before the Act was first drafted, Sylvester Stallone, Wesley Snipes and Sandra Bullock starred in the blockbuster movie “Demolition Man”.  Stallone’s character was punished for causing collateral damage while trying to take down a criminal mastermind by being cryogenically frozen in 1996.  He was thawed to reawaken in 2032.  The movie eventually showed a scene of a video conference being held in the distant future:

Perhaps the Act’s drafters were not avid Stallone fans, or maybe they underestimated the creative industry’s ability to predict the future.

On 18 March 2020, I wrote about the emerging crisis and counselled bodies corporate to simply start holding meetings electronically even in the face of doubt about the validity of those arrangements.  I finished by saying that I would not be surprised if many strata communities simply continue with these electronic meetings once the crisis abates.  My crystal ball was on point.

The strata industry and its legislation has settled into this new way of holding meetings.  The need for strata law to be fluid to keep pace with how rapidly developing our expectations are was a key theme of this video.

Despite its recent improvements, the legislation still carries with it the hallmarks of the expectation that all meetings would be held in person.  A good example of that is:

• committees can decide that observers of a committee meeting must not be present during discussions on particular issues, such as by-law breaches, legal proceedings and particular disputes;
• there is a wide definition of “records” – it includes recordings taken of a meeting;
• owners are entitled to have access to, or copies of, records; and
• there is a void in the legislation whereby an owner could be entitled to a copy of a recording of a meeting during which a sensitive matter is discussed.

If the owner attended the meeting, the committee could have decided that they must leave the meeting while the sensitive matter was discussed.  But can the owner now hear or see those discussions if they are entitled to a copy of the recording of it?  It causes complications that need to be considered and worked through.

• To record or not to record

In past decades, committee meetings involved the members all sitting together in the same room and greeting each other with a friendly handshake.  Now, the handshake has been replaced with confused looks as attendees attempt to figure out why they are muted or have suddenly turned into a cat on-screen.

Nonetheless, electronic meetings offer a more convenient way of working around the often busy schedules of committee members.  Video-conferencing software programs, such as Zoom, Skype and Microsoft Teams, allow meetings to be recorded in their entirety with the simple press of a button.

Since electronic meetings make it easier for committee and general meetings to be recorded, many committees and strata managers have started to record these meetings to improve the quality of the meeting minutes.

However, recording meetings may result in committee members “censoring” themselves during the debate on motions.  Understandably, if attendees know that their words will be recorded, they may be more careful with how they express their views.  This can limit the potential for frank and candid discussion amongst committee members, which may not be in the best interests of the body corporate in the long term.

Furthermore, recording meetings can open a can of worms, such as: (1) who the recording of the meeting belongs to; and (2) whether any interested person can access that recording.

• Who owns the recording of a committee meeting?

Whether the recording of a committee meeting is a body corporate record is central to determining who owns, and therefore who can access, that recording.

Schedule 6 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) states that “records” as ‘…for a body corporate, means the rolls, registers and other documents kept by the body corporate under this Act (including under the regulation module applying to the scheme).’  Furthermore, the Acts Interpretation Act 1954 (Qld) includes information stored or recorded on computer in the definition of a “record”.

Accordingly, an adjudicator concluded in The Astor Centre [2013] QBCCMCmr 249 that “an audio recording of a meeting that is captured by electronic means, such as a digital voice recorder or tape recorder, is a record in the same way as a written transcript or minutes of the meeting (whether stored as a computer file or in hard copy).”

By extension, this means that a recording of a committee meeting would be considered a body corporate record that must be retained.  This can apply even if the strata manager takes the recording for their own purposes.[1]

• Who may access a recording of a committee meeting?

Under section 205 of the BCCMA, a body corporate must allow an interested person to either inspect or be given a copy of a body corporate record within seven days of receiving a written request accompanied by the prescribed fee.

An “interested person” includes:

1. the owner, or a mortgagee, of a lot included in the scheme; or
2. the buyer of a lot included in the scheme; or
3. another person who satisfies the body corporate of a proper interest in the information sought; or
4. the agent of a person mentioned in paragraph a), b) or c).

Accordingly, lot owners would be entitled to inspect or receive a copy of a recording of a meeting, subject to the usual exceptions as to why a body corporate record may be withheld, including that it contains defamatory material or privileged information (legal advice, or even a discussion of such advice that discloses its content).

A body corporate may still be required to provide access to this record upon request if the defamatory material and/or privileged information could be removed or deleted from the copy of the recording given to the interested person.[2]

Furthermore, the regulation modules[3] outline the circumstances in which a committee can decide that a non-voting committee member (caretaking service contractor / body corporate manager) or a non-member (lot owner) cannot be present for discussion on certain issues at a committee meeting.  Those are:

• for a non-voting member:
  • a dispute between the body corporate and the non-voting member or the owner or occupier of a lot included in the scheme;
  • the person’s engagement as body corporate manager or caretaking service contractor.
• for a non-member / lot owner:
  • a breach of the by-laws;
• starting a proceeding the committee can decide to start;
• a proceeding against the body corporate;
• a dispute between the body corporate and—
• the owner or occupier of a lot; or
• a body corporate manager; or
• a caretaking service contractor.

Any part of the recording that deals with those sensitive matters may be privileged if legal advice was sought on the matter and discussed.  But if there was no privileged information discussed, is the person who would otherwise have to leave the meeting at that point in time entitled to the recording of the discussion?

That’s the complication I foreshadowed.

• Does a meeting have to be recorded?

The BCCMA and its regulation modules do not require a meeting to be recorded.  As mentioned above, some committees may prefer not to have their meetings recorded to foster frank and open discussion and debate.  But the other side of the coin is that some lot owners want meetings recorded in the interests of transparency and accessibility.

A committee is not obliged to record its meetings.  An adjudicator has also found that a committee could refuse to allow anyone in attendance to record the meeting as well.[4]

It is interesting to note that section 43 of the Invasion of Privacy Act 1971 (Qld) relevantly provides that:

• it is an offence for a person to use a listening device to record a private conversation; but
• this rule does not apply to a person who is a party to the private conversation.

I have seen some confuse this provision by arguing that it entitles them to record a committee or general meeting even if the committee or body corporate decide to prohibit the meeting being recorded.  A committee or general meeting is not a private conversation, so the provision simply does not apply.[5]

• Recommendations

If a strata manager or committee intends to record a committee or general meeting for the purpose of using that recording to assist with the preparation of meeting minutes, then they should:

• ensure that the participants are aware that the meeting will be recorded; and
• only record the parts of the meeting where the motion is read out, what is resolved by the committee/body corporate, and the number of votes for and against the motion – this aligns with the requirements of regulation modules in relation to what constitutes full and accurate minutes of a meeting.

By not recording those parts of the meeting involving discussion and debate, committee members can take the comfort of having frank and candid discussions without fear of having each and every uttered word subject to intense scrutiny.  It also removes the risk of caretaking service contractors, strata managers and lot owners getting access to the discussion of sensitive matters that they otherwise may not be entitled to hear if they attended the meeting.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

This article is contributed by Jason Carlson partner of Grace Lawyers. He is also a director of Strata Community Association (Qld) and has been a member of its legislation committee for many years.

[1] The Astor Centre [2014] QBCCMCmr 345 at [21].

[2] See The Astor Centre [2014] QBCCMCmr 345 at [33].

[3] Sections 62 – 63 of the Standard Module 2020, sections 54 – 55 of the Accommodation Module 2020 and section 25 of the Commercial Module (the provision about caretakers / strata managers does not apply to the Commercial Module).

[4] Coomera on the Park [2013] QBCCMCmr 204.

[5] Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at paragraphs 31 and 32, considering different but similarly worded legislation.