Last year we published an article titled “Should Board Member E-Mails be Maintained in the Official Records?” Spoiler alert: the article concluded that based on previous Department of Business and Professional Regulation Division of Florida Condominiums, Timeshares, and Mobile Homes (“DBPR”) rulings, the answer largely depended on whether emails that related to the operation of the association were solely between board members or emails between a board members and the manager.
However, in January 2022, the DBPR cast doubt on those conclusions when it issued a declaratory statement in the matter of In re: Petition for Declaratory Statement, James Hanseman, Docket No. 2021-012740 (January 6, 2022). In the declaratory statement, the Division Director stated that board member to board member emails are official records of the association even if they transmitted on a board member’s personal device. The Director reasoned that emails are a form of “writing” as the term is defined in Black’s Law Dictionary (11th ED. 2019), and since F.S. 718.111(12)(a)18 included as official records “all other written records of the association,” emails are considered official records.
The statement did not address the various circumstances that have led to different conclusions by DBPR and its arbitrators in the past, such as whether personal email addresses were used, the device the email was sent from, who the email recipients were, or whether a quorum of board members were part of the email. As a result, and the fact that the declaratory statement is only persuasive authority because it is binding only on the parties, it may lead to more instead of less disputes when it comes to what emails are available to inspection by the members.
The one thing that remains unchanged by this declaratory statement, is our general recommendation that board members be conservative with email use, only use association specific email addresses when discussing association related matters, and try to keep most communications regarding the operation of the community to open board meetings where the membership is free to attend and the decision of the board is memorialized in the minutes.