Director-To-Director Emails: Official Records Or Not?
By statute, almost any document relating to the operation and management of a condominium or HOA is to be kept as an Official Record available for member inspection. Over time, through administrative decision, the Florida Department of Business and Professional Regulation ("DBPR") cut out a small exception for director-to-director e-mails if those emails came from private e-mail addresses. In this post, we will look at the history of this "exception," the future of the exception, and some recommended best practices for directors and managers moving forward.
Florida Statutes, specifically Section 718.111(12) for condos and Section 720.303(4) for HOAs, define what documents must be maintained by the association as official records. While the Governing Documents of any association may include an expanded records retention policy than the statutes (requiring documents be retained in addition to those required by law), so far that does not appear to be a common practice. That said, remember that the Governing Documents may have a role in this conversation, especially in the future as the importance of electronic communications is recognized and managed communities begin to adapt accordingly. Governing Document issues aside, the statutes list various documents that must be maintained; the definition generally encompasses records related to the operation and management of the association. However, no particular statute or administrative guideline expressly includes director-to-director emails (especially from private email addresses) as Official Records that must be maintained by an association, which has allowed for certain arbitration decisions to except those e-mails from the Official Records requirement.
Noting that statutory ambiguity, arbitrators for the DBPR Division of Condominiums, Timeshares, and Mobile Homes ("Division") have issued arbitration decisions holding that director-to-director emails are exempt from the Official Records requirement, as long as the e-mail addresses used by each director were their personal e-mail addresses (conversely holding that if the directors used official association-owned equipment or official e-mail addresses, such documents would be Official Records). Two arbitration decisions stand out in this regard and have been used to keep this limited privilege in place since 2009. Those cases are Humphrey v. Carriage Park Condo. Ass'n, Inc. Case No.: 08-04-0230 (March 30, 2009) and Irizarry v. Laguna Point Condo. Ass'n., Inc. Case No. 08-05-2791 (April 10, 2009). Both decisions essentially employed the logic that there is something of a right to privacy for an individual's e-mails – and that since there is no obligation for a private citizen to monitor their private e-mail accounts with any regularity, such private correspondence is not to be maintained an Official Record (because a person's duty as a director does not require them to monitor their private e-mail addresses). Subsequent decisions that reinforced this general rule also cut out an "exception to the exception" by finding that if the association's manager is copied on these private e-mails, the communications become Official Records since the manager is an agent of the association and does have that duty to check and monitor their e-mails. (See generally, Harbage v. Covered Bridge Condo. Ass'n., Inc., Case No.: 19-03-6413 (January 2, 2020)). All e-mails in which the manager is included are going to be Official Records subject to maintenance by the association and inspection by the membership.
While this private director exception remains in effect as of the date of this post, some recent comments from the Division show that they may be making a shift away from this position. For example, the Division Director recently issued a declaratory statement finding that board member e-mails may be official records, even if the directors used their personal e-mail addresses. In re: Petition for Declaratory Statement, James Hanseman, Case No. 2021-012740 (January 6, 2022). The declaratory statement followed the notion that e-mails are written communications, and Section 718.111(12)(a)(18) states that "all other written records of the association" are to be maintained as Official Records. (A similar catchall Official Records provision is found in Section 720.303(2)(n) for HOAs). It is important to note that both catchall statutes only relate to communications "related to the operation of the association," so it does not mean that all a director's personal e-mails are Official Records, just those having to do with association business.
That said, the declaratory statement does not necessarily eliminate the personal e-mail address exception from Official Records as established by Humphrey and Irizarry. Rule 28-105.001 F.A.C. limits the application of "declaratory statements" to the specific "[…] petitioner's particular circumstances. A declaratory statement is not the appropriate means for determining the conduct of another person." In other words, the Hanseman declaratory statement is specific only to that case and is not to be considered as precedent for other cases, at least for now. It may still be used by arbitrators in the future as instructive guidance, and it is probably only a matter of time before this new approach is adopted on a larger scale.
Regardless of whether the Division continues to except director-to-director e-mails using personal e-mail addresses from the Official Records requirements of Chapters 718 and 720, it is still the best policy to treat director e-mails as if they are Official Records. That way, if the Division does deviate from the current policy and adopt the declaratory statement's holdings on a larger scale, the association will already be prepared and should have no issue with making those e-mails available for production/inspection. Taking that one step further, it is a best practice for any director, manager, or other association employee to imagine that every owner in the community is reading their e-mails over their shoulders as they are typed. This approach will keep any potentially discoverable e-mails in a professional tone and avoid those circumstances where an association must turn over e-mails where the directors or CAM are using less than professional language to describe an owner or other similar situations that are potentially problematic.
Finally, directors should consider two other issues if they intend to rely on the private e-mail exception for any reason. First, in the event of litigation, this Official Records exception may not prevent even the most personal of e-mails from being subject to discovery – the exception only means that (for now) these e-mails do not need to be kept as Official Records or made available for review by the membership. Whether such e-mails are discoverable in a lawsuit is going to depend on significantly different factors. Second, directors should never conduct votes or make official decisions via e-mail (private or otherwise) as both Chapters 718 and 720 prohibit the conducting of association business outside of a properly noticed meeting. (See generally, Sections 718.112(2)(c) and 720.303(2)(a), Fla. Stat. (2023)).
In sum, the private director-to-director Official Records exception continues, but there is enough evidence available to suggest that we may see that change soon. Directors and managers should take appropriate care when drafting any communication (regardless of the e-mail address utilized) and plan that any e-mail concerning the association will be subject to member inspection. Directors and managers should be drafting e-mails regarding association business as if they are going to be read by every member, or even potentially a jury, and should never conduct association business outside of a properly noticed meeting. The exception should be considered a convenience, not a tool to get around an association's obligation to offer transparent governance.
