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Are E-mails, Instant Messages (IM), & Twitter Transcripts “official” records of the Association? (Round 2)

In my last post, I touched on an actual decision Humphrey v. Carriage Park CAI by the Division on this matter. I am now going to address a Legal Opinion regarding “Access to Association E-Mails” put forth by the Division on March 6, 2002. The Legal Opinion provides that if e-mails are used as a form of communication between the Board and manager to handle the operation of the Association then they are subject to inspection by owners in the condominium setting. Although this Legal Opinion does not address Associations under Chapter 720 specifically, the same reasoning should apply. The key to this Legal Opinion is that the e-mails being addressed are not amongst the Board [as in Humphrey] but rather from members of the Board to its employee, the manager. There is no requirement that a Board interact with a manager solely during a Board meeting. If that were the case, the Association would never get anything done and this would be in contravention of the statute which vests the power to manage with the Board. Reading this Legal Opinion in conjunction with Humphrey one might get confused as to why e-mails exchanged by directors on their personal computers or PDAs even if they address the operation of the Association are not “official records” while those to the manager are. The answer would appear to be in the reasoning put forth in Humphrey that e-mails amongst the Board are not written communication to the Association because there is no obligation on the recipient-director’s part to read the e-mails. There is however a duty on the part of a manager to read a communication from an agent (i.e., director) of his employer (i.e., the Association). It is a subtle difference but a difference nonetheless. The Legal Opinion goes on to note that the Division has “no regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the Association property, it is required to be maintained by the Association, whether on paper or electronically….“ In other words once the Board communicates with its employees via e-mail regarding the operation of the Association those records are subject to the same inspection (and thus retention) requirements as all other “official records” of the Association.

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3 Comments
  • Avatar
    Judi Nelson
    August 18, 2009

    We are currently members of a committee in a HOA. Are there any restrictions for a committeeman applying or serving on the Board of Direcotors of the same Homeowners Assn?
    Thank you for assisting, Judi Nelson

  • Avatar
    Darlene Hauge
    August 18, 2009

    The BOD through a series of e-mails decided to conduct business on the hiring of a contractor for landscape ($615 per month). This involved entering into a one year contract ($615 for twelve months). The members of the board, discusses, created a motion, and e-mailed in their vote to hire. This motion was written, a second was completed, a vote was tallied, and the contract was entered into by the HOA. This information was e-mailed to the manager.
    Is this a legal motion/vote? What does the state of Florida say about mailing

  • Avatar
    C Hicks
    September 29, 2009

    Does an email from a property owner, not on the BOD, to the management company become Assn record? Our HOA members are afraid to complain for fear of reprisals from certain directors. Although anonymity has been requested and fear expressed, the management company insists names cannot be withheld.