A Denver area court recently forced a homeowners association to provide to requesting owners thousands of personal e-mails under a records inspection request. The judge required e-mails between board members and between board members and owners to be disclosed despite the lack of any language in the statutes to support such an order. Board members should exercise caution when corresponding by e-mail in case such judicial activism could affect them in the future.
As discussed in more detail in our article, Inspection of Corporate Records – What About E-mails?, state law regarding corporate records inspection. Corporate records, contains no language which would authorize the copying and inspection of private emails exchanged among board members and between board members and owners. But, courts can make mistakes or misinterpret the law. An appeal provides hollow relief if the records have already been released.
To protect themselves, board members should consider several preventative measures:
- Be aware that courts could enter a overbroad order
- E-mail is persistent. It sticks around on hard drives, servers, etc., so nothing should ever be put in an email which you would want not to be publicized
- Consider having board members establish and use separate email accounts for Association business, and limit the dialogue in that account to Association matters only
- Use email only when needed, not as a substitute for a phone call or meeting
- Remember that courts may hold board members to a higher standard of conduct and disclosure than others