With the start of the New Year, many Associations will be having their Annual Membership Meetings within the next month or two.  Because some Directors may not be re-elected or decide not to accept nomination to be a Director again, issues may arise regarding what items in possession of the departing or “X-Director” are part of the Association’s “Official Records” and, therefore, should be returned or delivered to the Association for its maintenance as part of its Official Records. 

While it is apparent that written documents in the possession and/or control of an X-Director, including letters, agreements, etc., are part of the Association’s Official Records, what about electronic data, information, documents and/or other forms of communication, such as electronic faxes, pdf files (or other photographic representations of documents, photographs, and communications), e-mails, etc.? 

Even though these types of electronically stored data and documents are not specifically listed as part of the Official Records in Florida’s Condominium (“Condo”) Act (F.S. §718), Florida’s Homeowners Association (“HOA”) Act (F.S. §720) or in Florida’s Cooperative (“Co-op”)Act (F.S. §719), each of these Acts has similar provisions stating, that the Association’s Official Records includes, “All other records of the association not specifically included in the foregoing [list of documents and data included in the Association’s Official Records] which are related to the operation of the association.” [F.S. §718.111(12)(a)15; F.S. §720.303(4)(l); F.S. §719.104(2)(a)13] 

The only difference between these provisions is contained in the Homeowners’ Association Act, which limits “other records” to only “other written records” [F.S. §720.303(4)(l)].  It is arguable, therefore, that electronic data or records, which have not been printed, are not part of the Official Records of the Homeowners Association, unless such non-written electronic data or records are specifically listed in F.S. §720.303(4) as being part of the HOA’s Official Records.  But what about documents which could be printed, but were not?  Or documents printed by others, but not by the X-Director? 

“An outgoing board or committee member must relinquish all Official Records and property of the association in his or her possession or under his or her control to the incoming board within 5 days after the election.” [F.S. §718.111(f); F.S. §719.104(e)]§  But there is no such provision in Florida’s HOA Act, except in the event a Director is recalled.  Even though no specific directive exists, it is clearly the intent, and therefore arguable, that an X-Director of an HOA is still required to deliver to the Association all written documents within his or her possession, which are included in the statutory list of Official Documents and/or which are related to the operation of the association.  The question still remains whether e-mails and other electronic data are required to be delivered to the HOA, as well.