Records Retention: Going Paperless through E-Archives
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In response to my last post (Records Retention: Risks of Failing to Comply with the Statute – Fines and the Division) I received a query from a subscriber as follows:
With regards to records retention, will you be able to address the paperless office and what records can be scanned and saved into a hard drive and what cannot. Also what is done with the documents that have been scanned?
In today’s age of technology and going green, I found the query to be so relevant to my Records Retention topic that I chose to respond via a formal post so all subscribers could benefit.
Both the condominium and homeowners statutes require Associations to maintain official records. They do not strictly require that this be done in paper format. Rather §718.111(12)(b) for condominiums provides:
The official records of the association shall be maintained within the state…. This paragraph may be complied with by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, or the association may offer the option of making the records of the association available to a unit owner either electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.
From the language above it is clear that a condominium can maintain its records electronically. Section 720.303(5) for homeowner associations on the other hand is not as clear:
The official records shall be maintained within the state and must be open to inspection and available for photocopying by members…. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community.
It is important to note that while not clearly providing authority for maintaining electronic records, the statute does not explicitly prohibit it. As such, if done properly, going paperless in an HOA should not be a problem.
Any Association making the decision to electronically archive (“e-archive”) its official records must think through all aspects of the task before taking the first step toward going paperless. Below are some of the items to be considered:
The e-archive system permits inspections and copies by members within the time frames required by the statutes.
The documents are e-archived in a manner which does not permit manipulation of the final document.
If you have gone to any website or bought software for your personal use lately, you find that many links are to a PDF document and while you can read, print and search the document, you cannot readily alter its contents. This is the type of protection an Association wants for its documents. E-archiving the document in Word or Wordperfect format does not prevent the inadvertent “save” which saves over the original document such that the integrity of the Association’s official records would be compromised. Further, saving in Word or Wordperfect does not permit the capture of the signature(s) at the bottom of a letter, notice, memorandum, and so forth which are added to the final document after it is printed but before it is sent out. Since there are plenty of programs on the market that give you the protection of a PDF document, the Association should consider which is its best option (see next item).
Research and investment in the software (e.g., Adobe, back-up software) and hardware (e.g., scanners, computers, back-up drives) necessary to ensure the e-archive system is properly set up, updated/maintained, searchable, and readily accessible to ensure statutory compliance.
It is important to know that the equipment employed in the e-archive system could be subject to inspection/forensic examination as part of a lawsuit such that the items should purchased and maintained by the Association and/or its managers, and not individual Board members. See both upcoming posts (February and March 2010) for more on this topic.
The e-archive system is such that the official records stay within the geographic mandates required by the statutes.
This may require the Association to use an e-archive system which backs up locally to a hard-drive which is maintained by the Association or its manager rather than using an e-archive service where the data is stored someplace else like Arizona.
A policy is created which ensures the e-archive is properly purged of documents once the time frame for retention has been exceeded.
My second post (February 2010) on this topic addresses the repercussions of keeping documents “forever” or not long enough.
The e-archive system does not do away with the Association’s ability to retain items where only the original will do whether that be required by the statutes or mandated by the Association’s attorney.
My third post (March 2010) on this topic gives a succinct plan to create a policy aimed at ensuring an Association’s compliance with the statutory requirements.
The e-archive system should ensure that documents which are privileged are archived in a manner so as to continue to protect their privileged status during a records inspection by a member or third party as part of a lawsuit or insurance claim.
A policy is created detailing who is responsible for creating and maintaining the e-archive, how frequently the documents are to be archived (weekly, monthly, quarterly, yearly, etc.) and how many e-archive back-ups will be made to avoid a problem if the storage format is damaged or lost.
The above considerations are not aimed at dissuading an Association from going paperless but rather to empower the Association to make an informed decision and carry it out properly. No matter what method of maintaining official records an Association chooses to use, the next two posts on this topic delve further into the Records Retention issue and provide ideas for limiting liability and exposure. Both posts would apply whether or not the records are maintained in paper or electronic format.
The intent of lawmakers should be considered when interpreting the requirement to maintain official records within the state. Lawmakers clearly were not considering electronic archives when the law was created. Instead, they were trying to ensure that records were readily and conveniently available locally to owners for viewing and copying. It is therefore the access to an e-archive which is more important than the physical location of the underlying storage, and we should consider that when interpreting the law.
It would be wrong to assume that access to a remote e-archive is necessarily less reliable, and therefore less accessible, than a local hard drive. The former is more likely to be professionally managed, and based on superior technology with built-in redundancy.
this is a question > can the board witout a vote of owners
decide to have face recognition system put in place...this
electronic system will keep a record of each time you
enter the building by using the key fob the security person will see your face and apartment # pop up on the
screen...I fear this mite be going to far...if a log of my
comming and going is stored on a hard drive. is this not intusive, futhermore we already have cameras all over the place. is this legal?
I would like to create a basic website that would provide access to HOA records to homeowners of our association. According to other members of the Board this can result in lawsuits because some members do not have web access. Assuming that any homeowner who requests official records will be granted them within the terms of the Florida statutes, is there really an access issue?
The only concern I have is posting the addresses of homes that are behind in dues or have other issues.
Any thoughts or comments would be appreciated.
RESPONSE: Any website containing sensitive assn information must have board approval. The condo act specifically allows the condo association to make records available electronically via the Internet. The HOA laws don't include this option, but you can use it as a secondary (or even primary since most owners would rather look at records on their personal computer than have to go to an office) resource for record inspections.
Posting delinquency information is NOT a good idea - even if that page is password protected, who knows who will gain access to the passwords and use the information inappropriately - the benefit doesn't really outweigh the downside. Try speaking with web consultants about the structure of a site and then present the idea to the board.