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BEFORE YOU HIT THAT “SEND” BUTTON
By
Eric Glazer, Esq.
Published February 21, 2022
Florida Statute states:
120.565 Declaratory statement by agencies.—
(1) Any substantially affected person may seek a declaratory
statement regarding an agency’s opinion as to the applicability
of a statutory provision, or of any rule or order of the agency,
as it applies to the petitioner’s particular set of
circumstances.
A man by the name of James Hanseman recently
sought a declaratory statement from The Department of Business
and Professional Regulation, Division of Condominiums,
Timeshares, and Mobile Homes regarding whether e-mail
communications between and among board members are “official
records” within the meaning of Florida Statute 718.111(12),
where such records relate to the Association’s operations but
are sent to and/or from personal computers and devices rather
than Association owned computers and devices.
Those of who have taken my Board Certification Class know that
the answer to this question is that as long as the e-mails were
on the private e-mail accounts of the Board members, they are
not “official records” and therefore the unit owners cannot
obtain copies of them. Well….that was all changed in one full
swoop.
In this declaratory statement, Chevonne Christian the Division
Director opined that:
The .. official records of the association" include .. all
other written records of the association not specifically
included in the foregoing which are related to the operation of
the association."§ 718.111 (12)(a) l8., Fla. Stat. Nothing in
this provision exempts such records when created or transmitted
with a board member-owned device rather than an Association
owned device.
The plain meaning of the statute is always the starting point in
statutory interpretation."
GTC, Inc. v. Edgar, 961 So. 2d 781, 785 (Fla. 2007).
Dictionaries can be used to determine the meaning of words.
Metro. Dade County v. Milton, 707 So. 2d 913, 915 (Fla. 3d DCA
1998).
Emails constitute a form of writing. Writing, Black's Law
Dictionary (11th ed. 2019).
Consequently, emails are "written
records," and their existence as such does not depend on the
ownership of the device through which the emails are
transmitted.
Accordingly, emails that otherwise constitute "official records"
are not excluded from thestatutory definition of "official
records" merely because they are created or transmitted with
board members' personal devices.
Wow! If e-mails constitute a form of writing,
no doubt text messages also constitute a form of writing. So how
is this going to work? Let’s say a unit owner makes a records
request for e-mails between board members during the month of
February, 2022. Do all of the Board members now have an
obligation to look through their e-mails and texts for the past
month, print them out and hand them in to the association?
Suppose each director simply says that we don’t communicate by
e-mail or texts, even though they do? What remedy does the unit
owner have?
While the decision is debatable as to whether
or not these e-mails are “official records” it is undeniable,
that it is simply unenforceable. It will be interesting to see
the first arbitration case that relies on this declaratory
statement. It will be even more interesting if that arbitration
case gets appealed and we ultimately get a decision of the
courts. Will a director ever be required to physically turn over
their phone or computer by a court? Who knows? But I think we
will either have a legislative fix or a court opinion within a
year. In the interim, keep in mind that before you hit the SEND
button on an e-mail, think about the fact that said e-mail may
one day be seen by everyone in the condominium, or even a judge
or jury.
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About
HOA & Condo Blog
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Eric Glazer graduated
from the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric has been the host of Condo Craze
and HOAs, a weekly one hour radio show that airs at 11:00 a.m.
each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 Floridians all across the
state. He is certified as a Circuit Court Mediator by The
Florida Supreme Court and has mediated dozens of disputes
between associations and unit owners. Eric also devotes
significant time to advancing legislation in the best interest
of Florida community association members.
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