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By: Michael Kouskoutis
Despite the ubiquitous use of e-mail, Florida law provides no clear answer on the extent to which HOA members can access e-mail communications of the association’s board members. While Florida Statutes permit broad access to “official records of the association,” including “all written records . . . which are related to the operation of the association,” an arbitrator in Humphrey v. Carriage Park Condominium Association, Inc., Case No. 2008-04-0230, ruled that electronic communications existing on the personal computers of individual directors are not official records of the association, even if they relate to the operation of the association.
In its rationale, the arbitrator emphasized that the property of a director does not become association property merely because of his or her office on the board. Notably, the arbitrator stated that it may have reached a different conclusion “if the association owns a computer on which management conducts business, including e-mails.”
If ownership is central to the classification of “official records,” then how will courts approach the more frequent occurrence where e-mails are exchanged on personal computers using association-owned e-mail domains?
An arbitrator’s opinion is not binding authority, but it should be viewed by a court as persuasive when this issue inevitably finds its way into a courtroom. On the other hand, a court may decide to depart from Humphrey entirely. However and until then, HOAs who wish to clearly draw the line between official and non-official association records should designate computers for association business or adopt policies to transfer association related communications to the association.
If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].