Should Board Member E-Mails be Maintained in the Official Records?

Both the Condominium Act and Homeowners Association Act delineate a list of documents or items that a community association must maintain as official records of the association. Both statutes also include a catchall provision (i.e., Fla. Stat. §720.303(4) and Fla. Stat. §718.111(12)(a)(15)) generally requiring retention of all records of the association not specifically included in the statute, which are related to the operation of the association. Does this catch-all require a community association to maintain e-mails among board members as official records? Fortunately, the Division of Condominiums, Timeshares, and Mobile Homes (the “Division”) has addressed this issue.

Generally, personal emails to, from, and between board members are not considered official records except where either the emails are received on an association’s computer where management conducts business or if the e-mail is printed and passed out for use during a board meeting. See Humphrey v. Carriage Park Condominium Association, Inc., Case No. 08-04-0230 (March 30, 2009/Final Order/Campbell). This case addressed an official records challenge where the unit owner argued the association willfully failed to allow a requested inspection by failing to provide access to board member e-mails.

Ruling in favor of the Association, the arbitrator determined that just because an individual holds an office on the board does not mean that emails existing on his/her personal computer become official records of the association. The arbitrator held “even if directors communicate among themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. . . This must be so because there is no obligation for a director to turn on personal computer with any regularity, or to open and read e-mails before deleting them.”

This determination was reiterated in the 2009 case of Irizarry v. Laguna Point Condominium Association, Inc., Arbitration Case No. 08-05-2791 (April 10, 2009/Final Order), and then again 2012 in the case Leo-Paul Masse v. Inverrary Condominium Association, Inc. Case No. 2012-03-9829 (December 18, 2012/Order Denying Petition’s Motion for Reconsideration and Final Order/Chavis).

However, if the community manager is on the e-mail thread the conclusion may be different. In Harbage v. Covered Bridge Condominium Association, Inc., Arb. Case No. 19-03-6413 (January 2, 2020), a unit owner requested to inspect e-mails between the association and its property manager. The association refused to provide the records, arguing the emails did not constitute written official records. The arbitrator ruled against the association citing Black’s Law Dictionary, which explicitly includes emails in the definition of a “writing” and held “emails are a written record subject to disclosure to unit owners.”

This seemingly conflicting opinion may have been rendered in reliance of a 2002 opinion from the-Chief Assistant General Counsel of the Department of Business and Professional Regulation (“DBPR”) concluding “[c]ondominium owners do have the right to inspect e-mail 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 the … statutorily protected exceptions …”

Based on these decisions, DBPR’s position seems to be that emails solely between board members are not official records, while emails between a board members and the manager are part of the official records and subject to member inspection unless an exception applies.

Notwithstanding the above, directors need to understand that while they may discuss association matters via e-mail, final decisions should not be made over e-mail. Both Florida Statute Chapters 718 and 720 state:

(a) Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. Meetings of the board must be open to all members…Fla. Stat. §720.303(2)(a)

(c) Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail…Fla. Stat. §718.112(2)(c)

 Finally, although e-mails are generally not maintained as an official record, if your community is involved in a litigation, the e-mails may be discoverable in the lawsuit. Even personal electronic communications may be discoverable. Therefore, the best recommendation is for most communications regarding the operation of the community to occur at open board meetings where the membership is free to attend and the decisions of the board is memorialized in the minutes.