New York's Cooperative and Condominium Community

Habitat Magazine October 2020 free digital issue

HABITAT

BOARD OPERATIONS

HOW CO-OP/CONDO BOARDS OPERATE

You HAVE a Privacy Policy — It's Just Not Written Down. That's Dangerous.

Frank Lovece in Board Operations on June 4, 2013

Trump Tower at City Center, White Plains, New York City

De Facto Privacy Policies
June 4, 2013

There's no law preventing gossip. There's no statute forbidding someone to look through security footage for political dirt. There's no case law saying a parent — or a suspicious wife or an aggrieved neighbor — can't ask a board member or a building manager for such data. And if all this is legal, then without a policy in place, particularly a written policy, it's all open to abuse.

Smile. You're on Candid Camera.

Unquestionably, buildings need security. Providing it, in the form of security guards, doormen, cameras and electronic key fobs is an important function of any co-op or condo board. But as we move inexorably toward digital data — with digital video recorders (DVRs) able to store over 1,000 days of footage on something little bigger than a shoebox, and with Internet-enabled cameras that can send security video to your smartphone — the ease of accessing information and the sheer amount of that information make it imperative that boards create policies defining who can access security data, and what privacy rights your residents can reasonably expect. 

De facto policies are

prone to misremembering,

misinterpretation

and on-the-fly changes.

"You have to try and respect the privacy of occupants," says Bruce Levinson, an attorney in his eponymous firm. "But," he cautions, "that needs to be balanced against the obligation of a board to provide for the security of those occupants."

At least one condominium in the New York metropolitan area is has a written privacy policy in place. Trump Tower at City Center in White Plains, N.Y. had its lawyer, James Glatthaar, a partner at Bleakley Platt & Schmidt, draft a privacy policy that restricts the viewing of security-camera images to the board of managers, to the resident manager and his assistant, and to the management company. It limits use to the condominium's normal business practices, and prohibits its commercial use.

Meanwhile, in Florida

While written privacy policies are rare in New York co-ops and condos, though that's less true with Florida condominiums and homeowners' associations. "Florida's communities might be a lot more on top of this issue," reports attorney Donna DiMaggio Berger, a founding partner of Katzman Garfinkel & Berger, which has six offices throughout Florida. "Some communities are already thinking about the issue of privacy concerns and have crafted policies."

"Privacy and security of information has always been a responsibility that boards should take very seriously," says Warren Schreiber, president of Bay Terrace Cooperative Section 1, a 200-unit garden-apartment complex in northeast Queens, and the co-president of the Presidents Co-op and Condo Council.

Privacy and security of

information has always

been a responsibility that

boards should take seriously.

— Board pres. Warren Schreiber

"On my board, one member is head of security," Schreiber says. "He is the only one authorized to view our security videos. Other board members cannot just go to him and say, 'Let me see video surveillance.' We've had instances where shareholders have wanted to see video surveillance when they've felt there was damage to their cars. There we've drawn the line: we look at the surveillance footage, and if we find evidence of damage we'll turn it over to them." Also, "if one of my board members wants to go to our property manager to look at his next-door neighbor's personal files — our property manager would not allow that to happen."

Just De Facto, Ma'am

Such unwritten de facto policies seem to be the norm so far. Max G. Freedman, vice president of the management company Maxwell-Kates, says that, with buildings in its portfolio, the issue of access to security data "is discussed with the boards and it is restricted to the managing agent, superintendent, attorney, or building security firm and only when necessary. Our advice to boards has been that they allow management and other professionals to handle security issues, thereby removing themselves from any liability. Most often the data is only recovered and used when issues involving criminal or other legal matters, such as an insurance claim, arise."

Yet de facto policies, by their nature, are prone to misremembering, misinterpretation and on-the-fly changes. Writing down unwritten rules helps avoid such issues and provides clarity and fairness. You need to have clear protocols in place. 

To learn what sensitive data you should secure and how to do it, read Part 2 or pick up the June issue of Habitat.

 

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