Q&A: Are Taped Recordings Legal?

Q We have recently found that a member of our condo’s Board of Directors had covertly taped the conversations during a board meeting and a board interview with a prospective purchaser. She did not tell anyone else on the board that she was taping the meeting and did not ask, or receive any permission to do this. Is this legal? What are our options, and do you have any recommendations on how to handle this?

—Covert Affairs in Chicago

A “Illinois has a statute that prohibits intentionally recording any conversation without consent of all parties to that conversation (720 ILCS 5/14-1 et seq),” explains attorney James P. Arrigo of the law firm of Tressler LLP in Bolingbrook. “Courts have determined that consent may be express, or may be implied where the circumstances show the participants do not have a legitimate expectation of privacy. Section 18(a)(9) of the Illinois Condominium Property Act (the “Act”) authorizes any unit owner to record portions of meetings which the Act requires be open to members, but also gives boards the power to prescribe reasonable rules and regulations governing the right to make recordings. Such rules might include requiring unit owners to give notice prior to any recording. Because board members are elected from among the unit owners per section 18(a)(1) of the Act, the board member in this instance would presumably have this same right to record. Absent a rule requiring notice, there is a reasonable chance that participants in the board meeting described may be found to have impliedly consented to being recording there.

“The covert recording of an interview with a prospective unit purchaser is an entirely different matter. The fact that the interview included a non-association member and likely took place privately (setting aside any question of whether it is association business that must take place at an open meeting) means that all of the participants to the interview would have to give their express consent to render the recording legal.

“The eavesdropping law provides for both criminal and civil enforcement. A first offense is a Class 4 felony and a party suing in civil court may obtain an injunction against further recording and/or monetary damages if a violation is proven. For these reasons, the best practice for prospective recorders would always be to obtain express consent of all participants. In the scenario above, the board’s options include contacting law enforcement to report the recordings as possible crimes, or taking legal action directly. The board could also adopt rules requiring notice by an owner recording a meeting. The board could also discuss the matter with the person who made the recordings with an eye toward resolving differences and preventing any future violations, which may be the best choice toward fostering a good relationship among board members and unit owners. This choice would also preserve the parties’ right to report or sue over past or future recording if necessary. Unfortunately, these options do not address the possibility that the purchaser could take action, as well.”