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ACCESS TO
OFFICIAL RECORDS (2013)
Access to official records is
regulated by FS Chapter 720.303(4)
+ (5). Legally, owners should have easy access to the
so-called documents. Nearly all documents are considered public, just a
few are considered protected -- see list below, according to FS
720.303(5)(c) 1-7
PLEASE NOTE: Although
boards and attorneys may try to hide certain documents, not all documents
are actually protected by client/attorney
privilege.
In theory -- and by statute --
every owner has the right to inspect, photocopy or receive copies of all documents --
10 business days after a written request has been made to the board. (See
Examples of written requests.) It is now required by
Florida statutes that you mail the request as a certified letter,
return receipt requested! The countdown starts
the day after confirmed receipt!
PLEASE NOTE: The
requirement of sending certified letters only comes into play if
litigation over the record request is necessary. The wording of the
statutes doesn't say that the board has to wait for a certified letter.
Many association boards allow requests to be e-mailed or even made by
phone. In my opinion a clear sign that these board members have nothing to
hide. But record requests made by e-mails and/or telephone are not
sufficient as proof if litigation is needed.
A little hint to save
expenses: In your request just ask to inspect the documents. You
can always ask -- during inspection -- for copies -- or copy the documents
with your own copying device at no cost. See FS
720.303(5)
But since there is no real
enforcement, boards often are encouraged by their attorneys and management
companies to refuse owners access to these documents.
Especially financial records seem to be the problem.
If it's the CAM that gives you
grief over your record request make sure you remind him/her of the new
provision in FS 486.436(2)(b)7. Violating
any provision of chapter 718, chapter 719, or chapter 720 during the
course of performing community association management services pursuant to
a contract with a community association as defined in s. 468.431(1). File
a complaint with CAM Licensing. No more excuse: "I
acted on orders of the board!" CAMs can now be held liable for
their own actions!
FS 720.311 requires Presuit
Mediation Offer before taking these issues to court.
But if the mediation fails, you can take the issue to Small Claims Court.
If
you followed the rules of FS 720.303(4) + (5) and your association
didn't oblige, there is really not much to mediate. You have the right to
the $500 penalty and the cost of the procedure. The law is very clear!
Mediation is done with a straight YES or NO! No lengthy arguments, no IFs and no BUTs! Use
your money for filing fees with your local Small Claims Court -- you get a
free mediation there anyway!
Despite owners having success in court (See:
Small
Claims Court Law-Suit for Violation of Florida Statutes ) it's not
as easy as it sounds. We
have seen cases where boards fight in court to deny inspection of records,
while racking up legal fees, most likely as they try to cover up financial
irregularities!
This is one
issue that should be easily resolved by a fast ruling of an arbitrator or
administrative judge! It is
imperative that this is another issue that needs to be dealt with in the
legislature.
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NEW RULES
(July 1, 2013)
(5) INSPECTION AND COPYING
OF RECORDS.--
The official records shall be
maintained within the state for at least 7 years and shall be made
available to a parcel owner for inspection or photocopying within
45 miles of the community or within the county in which the
association is located within 10 business days after receipt by
the board or its designee of a written request. This subsection
may be complied with by having a copy of the official records
available for inspection or copying in the community or, at the
option of the association, by making the records available to a
parcel owner electronically via the Internet or by allowing the
records to be viewed in electronic format on a computer screen and
printed upon request. If the association has a photocopy machine
available where the records are maintained, it must provide parcel
owners with copies on request during the inspection if the entire
request is limited to no more than 25 pages. The association shall
allow a member or his or her authorized representative to use a
portable device, including a smartphone, tablet, portable scanner,
or any other technology capable of scanning or taking photographs,
to make an electronic copy of the official records in lieu of
providing the member or his or her authorized representative with
a copy of such records. The association may not charge a fee to a
member or his or her authorized representative for such use of a
portable device. |
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NEW RULES
(July 1, 2013)
FS 720.303(5)(c)
The association may adopt reasonable written rules governing the
frequency, time, location, notice, records to be inspected, and
manner of inspections, but may not require a parcel owner to
demonstrate any proper purpose for the inspection, state any reason
for the inspection, or limit a parcel owner’s right to inspect
records to less than one 8-hour business day per month. The
association may impose fees to cover the costs of providing copies
of the official records, including the costs of copying and the
costs required for personnel to retrieve and copy the records if the
time spent retrieving and copying the records exceeds one-half hour
and if the personnel costs do not exceed $20 per hour. Personnel
costs may not be charged for records requests that result in the
copying of 25 or fewer pages. The association may charge up to 25
cents per page for copies made on the association’s photocopier.
If the association does not have a photocopy machine available where
the records are kept, or if the records requested to be copied
exceed 25 pages in length, the association may have copies made by
an outside duplicating service and may charge the actual cost of
copying, as supported by the vendor invoice. The association shall
maintain an adequate number of copies of the recorded governing
documents, to ensure their availability to members and prospective
members. Notwithstanding this paragraph, the following records are
not accessible to members or parcel owners:
1.
Any record protected by the lawyer-client privilege as described in
s. 90.502 and any record protected by the work-product privilege,
including, but not limited to, a record prepared by an association
attorney or prepared at the attorney’s express direction which
reflects a mental impression, conclusion, litigation strategy, or
legal theory of the attorney or the association and which was
prepared exclusively for civil or criminal litigation or for
adversarial administrative proceedings or which was prepared in
anticipation of such litigation or proceedings until the conclusion
of the litigation or proceedings.
2.
Information obtained by an association in connection with the
approval of the lease, sale, or other transfer of a parcel.
3.
Personnel records of the association’s employees, including, but
not limited to, disciplinary, payroll, health, and insurance
records. For purposes of this subparagraph, the term “personnel
records” does not include written employment agreements with an
association employee or budgetary or financial records that indicate
the compensation paid to an association employee.
4.
Medical records of parcel owners or community residents.
5.
Social security numbers, driver’s license numbers, credit card
numbers, electronic mailing addresses, telephone numbers, facsimile
numbers, emergency contact information, any addresses for a parcel
owner other than as provided for association notice requirements,
and other personal identifying information of any person, excluding
the person’s name, parcel designation, mailing address, and
property address. However, an owner may consent in writing to the
disclosure of protected information described in this subparagraph.
The association is not liable for the disclosure of information that
is protected under this subparagraph if the information is included
in an official record of the association and is voluntarily provided
by an owner and not requested by the association.
6.
Any electronic security measure that is used by the association to
safeguard data, including passwords.
7.
The software and operating system used by the association which
allows the manipulation of data, even if the owner owns a copy of
the same software used by the association. The data is part of the
official records of the association. |
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The
following records are not accessible to members or parcel owners:
1.
Any record protected by the lawyer-client privilege as described
in s. 90.502 and any record protected by the work-product
privilege, including, but not limited to, a record prepared by an
association attorney or prepared at the attorney’s express
direction which reflects a mental impression, conclusion,
litigation strategy, or legal theory of the attorney or the
association and which was prepared exclusively for civil or
criminal litigation or for adversarial administrative proceedings
or which was prepared in anticipation of such litigation or
proceedings until the conclusion of the litigation or proceedings.
2.
Information obtained by an association in connection with the
approval of the lease, sale, or other transfer of a parcel.
3.
Personnel records of the association’s employees, including, but
not limited to, disciplinary, payroll, health, and insurance
records. For purposes of this subparagraph, the term “personnel
records” does not include written employment agreements with an
association employee or budgetary or financial records that
indicate the compensation paid to an association employee.
4.
Medical records of parcel owners or community residents.
5.
Social security numbers, driver’s license numbers, credit card
numbers, electronic mailing addresses, telephone numbers,
facsimile numbers, emergency contact information, any addresses
for a parcel owner other than as provided for association notice
requirements, and other personal identifying information of any
person, excluding the person’s name, parcel designation, mailing
address, and property address. However, an owner may consent in
writing to the disclosure of protected information described in
this subparagraph. The association is not liable for the
disclosure of information that is protected under this
subparagraph if the information is included in an official record
of the association and is voluntarily provided by an owner and not
requested by the association.
6.
Any electronic security measure that is used by the association to
safeguard data, including passwords.
7.
The software and operating system used by the association which
allows the manipulation of data, even if the owner owns a copy of
the same software used by the association. The data is part of the
official records of the association. |
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