Are E-Mails Considered Official Records for Florida’s Community Associations?

Florida’s community associations, including condominiums and homeowners associations, are required to keep and maintain its official records.  See Fla. Stat. § 718.111(12); Fla. Stat. § 720.303(4).  Upon request, those official records are to be made available to all members at reasonable times.  IdThe Florida Condominium Act and HOA Act contain a long list of items that are considered official records of a community association; however, e-mails are not expressly listed.

When detailing what are considered the official records, the statutes provide a catch-all provision that states, “all other written records of the association not specifically included in the foregoing which are related to the operation of the association.”  Id.  Would emails between members of the board of directors fall under this catch-all provision?  Many disagreements have resulted from this ambiguity, but a Florida Department of Business and Professional Regulation arbitration opinion sheds light on the answer.

That opinion, which is a Final Order in the arbitration of Humphrey v. Carriage Park Condominium Association, Inc., Case No. 2008-04-0230, stands for the proposition that emails that only exist on the personal computers of individual directors and not on an association computer are not official records of an association.  The following is taken directly from that arbitration opinion:

The e-mails requested in this case are those existing, if at all, on the personal computers of individual directors.  These are not official records of the condominium association.  The property of an individual director does not become the property of the association because of his office on the board.

Just as a statement by an individual director cannot bind the board, an e-mail from or to a director, is not a record of the association.  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.

Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association.  This must be so because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.

The arbitration opinion concluded with the following footnote:  “The conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.”  An association, its manager or its members should contact an attorney experienced in community association law for questions on whether certain communications are considered official records and are required to be maintained for inspection.

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