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ACCESS
TO E-MAILS
By
Eric Glazer, Esq.
Published July 28, 2014
Listeners of our
Condo Craze and HOAs radio show know that we just discussed a
new law for condominium associations that lets directors
communicate, but not vote, by e-mail.
On
its face, I don’t find it objectionable that directors can
communicate by e-mail. Of
course board members need to exchange ideas, thoughts and
concerns and it is often times not practical to do so only at a
properly noticed Board meeting.
The
problem I have is that at present, no matter how many times the
Board members communicate to each other from their computers
about the operation of the association, these e-mails are not
“official records” of the association and therefore cannot
be seen by any of the other unit owners.
Here’s why….
In Humphrey
v. Carriage Park Condominium Association, the arbitrator
ruled as follows in regards to a unit owner’s request to see
e-mails amongst and between the board members:
The e-mails
requested in this case are those existing, if at all, on the
personal computers of the 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 amongst 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 on 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 the personal computer with any regularity,
or to open and read e-mails before deleting them.
This
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.
I
disagree with the opinion. Why
should it matter on what computer the e-mail was written on?
It’s either relevant to the operation of the
association as required by statute, or it isn’t.
According to this opinion, board members can discuss
crucial terms of a contract including price, make modifications
to that contract, and despite the fact that these e-mail
communications clearly effect the operation of the association,
unit owners are not allowed to see them, simply because of where
the person was drafting the e-mail at the time it was sent.
If it was sent from their home, it’s off limits. But,
if it was sent from a desk top computer in the office, unit
owners can see it. Makes
no sense.
I
don’t want the personal computers of directors searched.
That is not what I am suggesting.
However, if board members are going to make certain
decisions by e-mail, and discuss the operation of the
association by e-mail, they should be aware of the fact that
these communications are not subject to some sort of privilege
and can be seen by the other owners.
What possible expectation of privacy can a director say
they were entitled to when writing to another director about an
association matter?
I’m
in favor of making these communications available for the other
owners to see. Am I
off base or is anyone else out there with me?
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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 is currently entering his 20th year as a
Florida
lawyer practicing |
community association law and is the owner of
Glazer and Associates, P.A. an eight attorney law firm in
Orlando
and Hollywood. For the past two years Eric has been the host of Condo Craze and
HOAs, a weekly one hour radio show on 850 WFTL. See: www.condocrazeandhoas.com.
He is the first attorney in the State of Florida
that designed a course that certifies condominium residents as
eligible to serve on a condominium Board of Directors and has
now certified more than 7,500 Floridians. He is certified as a
Circuit Court Mediator by The Florida Supreme Court and has
mediated dozens of disputes between associations and unit
owners. Finally, he recently argued the Cohn v. Grand
Condominium case before The Florida Supreme Court, which is
perhaps the single most important association law case decided
by the court in a decade.
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