Emails as Association Official Records

Whether you live in a condominium, cooperative or homeowner association, the Statute governing your community defines the term “official records.” In defining official records, each Statute has a catch-all provision.

All other written records of the association not specifically included in the foregoing which are related to the operation of the Association.

Sections 718.111(12), 719.104(2), and 720.303(4), Florida Statutes.

Questions abound, however, as to whether emails are official records. The Department of Business and Professional Regulation (“Division”) has ruled that emails to an association can be considered official records, and are therefore subject to inspection and copying by owners or their representatives. But are all emails “to an association?” Are personal emails between board members official records? What about an owner’s email to a board member’s email address and the board member’s response to that owner – is that considered an official record subject to another owner’s inspection and copying?

Division rulings have held that e-mails to an individual director or to all directors as a group, addressed only to their personal computers, are not written communication to the association and therefore not considered an official record. This is because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.  Irizarry v. Laguna Point Condominium Association, Inc., Arbitration Case No. 08-05-2791 (April 10, 2009/Final Order). This point was further clarified in the arbitration case of Humphrey v. Carriage Park Condominium Association, Inc., Case No. 08-04-0230 (March 30, 2009/Final Order/Campbell), where the arbitrator stated that “any e-mails received by, stored upon, or otherwise contained upon or within the personal computing devices (e.g., computers, laptops, cell phones, tablets, etc.) of Directors shall be considered the personal property of the Director upon whose device said e-mail exists.”  In other words, the email does not belong to the association.

However, the arbitrator in Humphrey went on to state “[t]he conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.”  In other words, emails to an association’s email address, the manager’s email address or any other email identified as an association email (“@condoname.com”) are considered official records.

It is important to have a clear understanding of and policy in place related to emails such that those that are official records are properly kept and those that are not are properly deleted. There are also exceptions for things such as litigation holds, which must be considered when creating and implementing an email policy.  It is therefore strongly recommended that all associations involve their attorney when formulating their policy.

 

Written by Howard J. Perl and originally posted to FL Condo HOA Law Blog