PART 4: INSPECTION AND COPYING RECORDS
Throughout the years, some board members and even managers have violated this provision either unintentionally or deliberately. Statutes have become clear that any director, officer, or CAM who knowingly, willfully, or intentionally violates the provision of providing record access and copying privileges to a member with the intent of causing harm to the association or its members, commits a misdemeanor of the second degree, and is subject to punishment as provided in F.S. 775.082 or F.S. 775.083 (Florida Criminal Code). Furthermore, any person who knowingly and intentionally defaces or destroys accounting records during the period in which such records are required to be maintained, or who knowingly or intentionally fails to create or maintain accounting records that are required to be created or maintained, with the intent of causing harm to the association or its members, commits a misdemeanor of the first degree, and is subject to punishment as provided in F.S. 775.082 or F.S. 775.083 (Florida Criminal Code). Additionally, a person who willfully and knowingly refuses to release or otherwise produce association records with the intent to avoid or escape detection, arrest, trial, or punishment for the commission of a crime, or to assist another person with such avoidance or escape, commits a felony of the third degree, punishable as provided in F.S. 775.082, F.S. 775.083, or F.S. 775.084 (Florida Criminal Code). As a matter of best practices, an association should adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections of the records. However, any such rules or any entity providing the requested records may not require a parcel owner to demonstrate their purpose for the inspection, nor 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 can charge 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, the association may have copies made by an outside duplicating service and charge the actual cost of copying, as supported by the vendor invoice. Lawyer-client privilege Records protected as described in F.S. 90.502 (Evidence Code, Lawyer-client privilege) and any record protected by the work-product privilege.*
Often members of a community association request or demand to inspect the records of the association. Along with that request, they often want to make copies of the records they are inspecting. Florida statutes, including F.S. 720, HOAs, address this provision extensively with requirements, procedures, and recommendations for policies that a board may create to handle such requests. Let’s explore those provisions in Florida’s HOA statute, 720: ● Unless otherwise provided by law or the governing documents of the association, the official records must be maintained within this state for at least seven years. ● They must 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. ● They must be made available within 10 business days after receipt by the board or its designee of a written request from the parcel owner. ● If the HOA 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. ● An 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 the association’s 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 their authorized representative for the use of a portable device. The association can comply with this by having a copy of the official records available for inspection or copying in the community or 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. Caution board members and CAMs! If the association fails to provide access to the records within 10 business days after receiving a written request sent by certified mail (return receipt requested), it might be argued/ presumed that this was an intentional failure to comply. A denial of access to the official records could result in fines. For willful failure to comply, minimum damages are $50 per calendar day up to 10 days. The 10 days is calculated to begin on the 11th day after receiving the written request. For a CAM, this could also result in a complaint about their license.
Records not accessible to members Some records of the association are not accessible to members or parcel owners for inspection and copying. Such records are outlined here.
*Work-product privilege includes 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.
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Book Code: CAMFL1526
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