It has become rather common knowledge
among owners in condominiums and
homeowners associations that the records
of the association must be made available to
the owners or their agents upon request.
There are a few exceptions where certain
types of documents are exempt from the
requirement that materials be made
available, but generally speaking, all
documents that concern the operation of the
association must be made available. The
exceptions are a matter for another article. In
this article, I want to address a more modern
issue that is creating a great deal of
controversy: When are emails required to be
printed and produced to owners who request
them?
In 2002, a legal opinion was rendered
through an assistant general counsel at the
Florida Department of Business and
Professional Regulation which concluded
that condominium owners do, in fact, have a
right to inspect email correspondences
between the board of directors and the
property manager as long as the
correspondence is related to the operation of
the association and does not fall within one
of the statutory exceptions.
Basically, the Department's attorney cited as
support for her conclusion that the law
requires the associations to maintain all
records that are related to the operation of
the association. The attorney acknowledged
that there are no regulations which expressly
require the archiving of emails, but she
concluded that, if the email correspondence
relates to the operation of the association
property, it must be maintained by the
association either on paper or electronically.
She concluded that whether a particular
email correspondence is an official record
should be determined on a case-by-case
basis. In this author's opinion, the
Department's lawyer left associations who
rely upon her conclusions in an impossible
situation. If a copy of an email was not kept
because those involved in the exchange did
not believe it was an official record or simply
did not recognize the obligation to keep it, it
will be impossible to evaluate whether that
record should have been kept when an
owner requests it. The Department's lawyer
did not conclude that all email should be kept
so that the suggested "case-by-case"
analysis can be performed when the records
are requested.
As if the 2002 legal opinion from the
Department was not confusing enough, an
arbitrator at the Department rendered a
decision on March 30, 2009 that held that
email communications which were on
directors' own personal computers were not
official records of the association and did not
have to be produced to an inquiring unit
owner. In the case of Humphrey v Carriage
Park Condominium Association, Inc., Case
No. 2008-04-0230, the arbitrator rationalized
that an email from a single director is not a
record of the association since the
statements of one director cannot bind the
board. That is a new analysis since, when
considering other records that are
unquestionably official records, whether the
record reflects a consensus of the board has
never been a test to determine whether the
record is subject to an owner's inspection
request. The arbitrator also held that a string
of emails among the directors on matters
concerning the operation of the association
would not be official records since they are
communications made on the personal
equipment of the directors. Again, never
before has the analysis of whether a record
is an official record been given so much
weight
to the issue of whose equipment was used
to produce
the record. The arbitrator concluded that an
email sent to one or more directors is not a
written communication to the association
since there is no obligation for a director to
turn on his personal computer with any
regularity to open or read emails before
deleting them. This author cannot
understand that rationale; if a statement is
made and no one reads it, so the theory
goes, there was no statement made. It is
difficult to understand how an unopened
email is any less an official record than an
unopened piece of snail mail if the subject
matter was association business and it was
sent to all directors.
Interestingly, the arbitrator points
out in the same case the fact that the section
in the Condominium Act which allows for
damages to those unit owners who are
denied access to official records does not
apply where the records were not kept. In
other words, even if the law requires certain
records to be kept, the association's failure
to keep the records does not entitle the
owner to recover damages. The association
may be fined by the Department for not
complying with the law, but the association
would not be exposed to damages to each
owner who cannot obtain the records
because they were simply not properly kept.
If, for example, an email should have been
kept, but was not, if the rationale of this
arbitrator were followed, the association
would not be exposed to an action for
damages by an owner for his inability to
obtain the records.
A footnote to the arbitrator's
decision sheds some light on his thought
process. In the footnote, he indicates that his
conclusions may have been different had the
email exchanges been included on an
association-owned computer on which
management conducts business or if printed
copies of the email exchanges were passed
around for discussion at a board meeting. It
appears that his opinion is based upon the
concept that the email exchanges among
directors do not become association records
provided that the email is contained entirely
among the directors' personal computers.
Much like the fact that a private conversation
among some directors on their telephone
(presume less than a quorum) would not be
recorded in minutes, the record of email
exchanges solely on the directors' own
computers are not official records of the
association.
Neither the 2002 legal opinion from the
Department nor the recent arbitration
decision are binding law; both simply reflect
how some at the Department view the issue.
In the arbitration setting, the arbitrators often
look to each other's decisions to support
their own conclusions. Sometimes, what one
arbitrator concluded is used as the basis for
another arbitrator's conclusion in a similar
case. Unfortunately, there is no way to know
whether one arbitrator will follow another
arbitrators' lead on an issue like this one.
This author has had clients specifically rely
upon the conclusions of an arbitration
decision only to have another arbitrator rule
that the first opinion was not accurate.
Since the issue of whether email among
directors are official records which must be
preserved and produced to inquiring owners
is still unsettled, substantive discussion in
emails should be avoided. It is a better
practice to use email exchanges for more
nominal association business such as the
coordination of the scheduling of meetings
and making suggestions for agenda items
for meetings, for example. Also, to the extent
that email is used among the directors, care
should be taken to ensure that the email is
not communicated on association-owned
computers. As the recent opinion suggests,
exchanges on an association-owned
computer could convert an otherwise non-
association record into an association record
which is then subject to an owner's right to
inspect and copy.
