A newly released Declaratory Statement issued by the Department of Business and Professional Regulation's Division of Florida Condominiums, Timeshare, and Mobile Homes ("DBPR") clarified an issue pertaining to board of director email correspondence. The DBPR considered whether email communications between board members constituted association "official records" under Section 718.111(12), Florida Statutes, when those emails were sent from personal computers and devices. The decision was issued in In re: Petition for Declaratory Statement, James Hanseman, Docket No. 2021-012740, DS 2021- 014 (Jan 12, 2022).

Managers and Board members are familiar with the statutory right of members and their agents to inspect the association's official records. Chapters 718 and 720, Florida Statutes, permit members to inspect the association's official records, which must be made available in a timely manner. Members have the right to view and make copies of a wide range of documents enumerated in Sections 718.111(12) and 720.303(4), Florida Statutes. These documents include governing documents, minutes, notices, rosters, and financials. Additionally, the Statutes include a "catchall" provision that broadens what is defined as an official record. Section 718.111(12)(a)18., Florida Statutes states "all other written records of the association not specifically included in the foregoing which are related to the operation of the association" are deemed an official record. Concerning email correspondence, the DBPR previously carved out exceptions as to what emails would fall under the "catch all." It was generally held that emails from an association member to a board member's email address on their personal computer or device are not official records if the board was using their personal email addresses. Irizarry v. Laguna Point Condominium Association, Inc., Arb. Case No. 08-05-2791 (April 10, 2009/Final Order); Humphrey v. Carriage Park Condominium Association, Inc., Case No. 08-04-0230 (March 30, 2009/Final Order/Campbell).

The DBPR further held that emails between members of the board of directors are not official records if using their personal computers and devices. This was true even if a majority of the board was copied on the correspondence and discussing operations of the association. The basis of the decisions was that "there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them." Therefore, emails were not official records whether they were amongst board members or between board members and owners, as long as the board was utilizing their own email addresses on personal computers and devices. The exception to these rules involves emails between the board and the association's manager, where arbitrators have deemed these discoverable. Harbage v. Covered Bridge Condominium Association, Inc., Arb. Case No. 19- 03-6413 (Jan. 2, 2020).

However, the DBPR's recent decision retracts these email exceptions. As a result of the Declaratory Statement, emails between board members pertaining to an association's operations and sent from personal computers and devices are now association official records. The basis of the decision is that the "catch all" provision refers to "all other written records of the association." Because an email is a form of writing, there is no exception to the "catch all" portion of the official records Statute. It is no longer relevant who controls the device where the email emanates.

This poses challenges for boards accustomed to communicating with one another from personal email addresses on their personal devices. Board members should be cautious and interpret this to mean that any correspondence sent from a personal email address on any device is now an official record of the association if dealing with association business. The Tankel Law Group recommends our association clients adopt a clear policy for handling email inspection requests. The policy should detail how association emails are stored, and what should be permitted to be divulged should an inspection request be received. Best practice is for every Board member to utilize a separate association email address to prevent intermingling their personal lives with the association. The Tankel Law Group is available to discuss in greater detail these recommendations to ensure your association complies with the law.