RD600 - Common Interest Community Board Review on the Feasibility of Allowing Audio and Video Recordings to be submitted with a Notice of Final Adverse Decision pursuant to Senate Bill 693 (2022) – October 26, 2022

Executive Summary:

Sections § 54.1-2354.3 and 54.1-2354.4 of the Code of Virginia establish the Office of the Common Interest Community Ombudsman (“CICO") and the requirement for each common interest community (“CIC") association to establish an internal complaint procedure to resolve complaints made by an association member or citizen (“complainant") against the association. A complainant who receives an adverse decision from an association may file a notice of final adverse decision (“NFAD") with the Common Interest Community Board (“the Board"). The NFAD is to include all records pertinent to the association’s adverse decision. The CICO reviews the NFAD to determine whether the association’s decision conflicts with laws and regulations governing CICs. Under applicable statute and Board regulations, an NFAD must be in writing.

Senate Bill 693, as introduced during the 2022 General Assembly session, proposed to amend the Code of Virginia to require that an NFAD filed with the Board include “…any video or audio recordings…" The original bill was amended. The amended bill directed the Board to “…review the feasibility of allowing audio and video recordings to be submitted with a notice of final adverse decision as a record pertinent to the decision in accordance with § 54.1-2354.4 of the Code of Virginia." The bill required the Board to:

• Identify pertinent statutory and regulatory amendments necessary to allow for the submission of recordings;

• Identify any impediments to the submission of recordings, including information technology limitations and compliance with the provisions of the Virginia Freedom of Information Act and other public records laws;

• Consider whether allowing the submission of recordings would assist the CICO in the performance of duties with respect to any NFAD;

• Solicit and consider public comments; and

• Report its findings and any legislative, regulatory, policy, or budgetary recommendations to the Secretary of Labor and the Chairmen of the House Committee on General Laws and the Senate Committee on General Laws and Technology.

The Board conducted the review with assistance from a committee comprised of common interest community attorneys, citizens residing in common interest communities, Board members, and the CICO.

The committee concluded that § 54.1-2354.4 of the Code of Virginia would likely need amendment to clarify that audio and video recordings can be submitted as records pertinent to a decision. The Common Interest Community Ombudsman Regulations (18VAC48-70) would require significant amendment to provide the public with the requirements and processes for submitting audio and video recordings with NFADs. CICs would be required to amend their internal documents and policies in order to comply with these changes. Implementation of these changes by CICs are impediments that may not make such changes feasible.

The Department of Professional and Occupational Regulation (DPOR) has the technical capacity to receive and archive digital audio and video recordings, but would need to establish clear guidelines prescribing acceptable file formats and procedures for submission of recordings. DPOR would need to provide appropriate training and resources for its public records management staff to perform redactions of recordings in order to timely and appropriately comply with the Freedom of Information Act when requests for closed NFAD cases are received.

The CICO may be able to receive and review recordings, and DPOR’s public records management staff may be able to fulfill public records requests, without the need for additional staff. Additional staff would be required if there are a high number of NFADs that include recordings.

The committee also concluded that allowing for submission of audio and video recordings would be contrary to the role and purpose of the CICO and the association complaint process as designed by the General Assembly. Moreover, allowing for submission of audio and video recordings would not assist the CICO in performing the duties required by statute, and would likely be detrimental to the performing of these duties. The committee further concluded there was no substantial evidence for a change, and no identifiable public problem that allowing for submission of audio and video recordings would address. Moreover, the committee concluded that allowing for submission of recordings to the CICO may result in unintended negative impacts to CICs.

Based on the committee’s findings and conclusion, the Board recommends against any legislative or regulatory changes to allow for the submission of audio and video recordings with an NFAD.