Responding to Document Requests

Hello, Everyone:

I am the secretary/treasurer of my HOA. I was elected at the 2014 annual meeting in April.

There has been a continuing controversy over the years regarding communication between the BOD and the members of the Association. The complaints revolve around lack of response to document requests, lack of response to general inquiry, lack of notification regarding things in general.

More recently, I received an email request from a homeowner for documents. He forwarded his original request, to which he did not receive a response. His original request was sent to the President of the HOA, the property manager, and counsel, who is also the agent for the HOA. Since he hadn't received a response, I responded to his request, sending him the documents he requested, which I happened to have in my possession because I, coincidentally, requested the same records.

I was severely chastised by the president and other directors for not having cleared the response with the property manager and with counsel. There is NOTHING in our governing documents requiring me to do so. There are no procedures in place for handling document requests, other than the requirement to respond to document requests within 10 days of receiving the request.

My questions are: 1. As a member of the BOD, don't I have the right, if not the obligation, to respond to a homeowner request for ANY information to which he or she is entitled to receive? 2. Does the right to receive HOA documents apply to drafts? For example, there are draft minutes of a BOD meeting (the only meeting we've had in 2014, for which I have a copy of the draft minutes) which haven't been approved. Are those draft minutes considered official documents and, therefore, may be requested by the homeowner?

I continue to be chastised by the president and by other BOD members for not following procedures. My response has been, and continues to be, that there aren't any procedures for handling information requests spelled out in our governing documents or anywhere else, and that pronouncements by the president and vice president do not constitute a procedure.

There are numerous other inconsistencies that I've managed to uncover; but, I'm focusing on these for the purpose of this posting.

Thank you for your help.

With Sheila, I also think you should have emailed your PM, copying the president, asking about the status of the Owner's document request. I also think that a simple apology to the prez should be sufficient and that he shouldn't harp on it. Presumably, you didn't send anything confidential, right? Mind sharing with us what the document is?

I also agree that your Board does need to craft a policy that complies with FL laws about such requests and make it available to owners.

WE had a similar situation here last week that was resolved quickly. An owner wanted a copy of an executed proposal (which was very easily retrievable). Owners may have those in our state. For some strange reason, the PM said she'd have to check with the Board! The owner, knowing something about CA's Open Meeting Act, asked why should he wait for the next board meeting, the only way that the Board can make a decision? Then the PM said she'd have to check with the board president. He did get the doc within 24 hours

I don't know yet, why this owner was given the runaround, but he's going to bring up the topic at our board meeting's Open Forum tomorrow night. He was plenty steamed!

Thank you for your response. What I didn't include (my apologies) is that the homeowner forwarded to me his follow-up inquiry as to why he hadn't received a response to his initial document request.

I believe that I am intelligent enough and careful enough to know what may be sent v what not to send; but, I appreciate your counsel in that regard. The problem is that the BOD has not been responsive to the homeowners generally, and has been making most of the decisions on an ad hoc basis without regard to precedent or to any of the provisions of the governing documents. As a result, we have decisions being made that conflict with the by-laws, procedures being carried out that appear NOWHERE in any governing document or within our rules, things being done on an ad hoc basis.

As to the email problem, the problem is that the homeowners are not getting responses to their emails, none of the issues that you suggested may be the cause. Once again, I appreciate that you point out these things; but, they are things we've already considered. To be fair to the property manager, things were dumped in her lap, without a thorough explanation; and, adding insult to injury, the property manager was given an incomplete copy of our covenants, which was corrected when concerned homeowner called the property manager to discuss an enforcement issue, and learned that the property manager didn't have a complete copy of the covenants.

If you are ready to take issue with the Board's failure-to-disclosure practices, I would make the following suggestions:
1. Identify which official documents you think should be accessible to HOs on request. (Draft minutes have no official weight until adopted and should be excluded).
2. On the documents you selected, inform the other Board members that you will be fulfilling the HOAs fiduciary responsibility to provide documents to HOs within 10 days of request, either directly yourself or through the management company.
3. If the other members object, don't let them get away with a general objection. Ask them for details of which information in which documents should not be disclosed and why.
4. If needed, tell the other Board members that you will contact the HOA attorney to find out if the Board is in dereliction of its duties by not providing the requested docs in a timely manner. Depending on their answers, do what you think is in the best interest of your community.
5. You are better off starting with a short list of documents. When the Board settles down a bit, you can gradually add documents to your list.
6. You will find out soon enough if you have a Board that is dominated by a single individual and how difficult it will be to get your HOA on track.
Best of luck.

Eugene

You ask:

My questions are: 1. As a member of the BOD, don't I have the right, if not the obligation, to respond to a homeowner request for ANY information to which he or she is entitled to receive? 2. Does the right to receive HOA documents apply to drafts? For example, there are draft minutes of a BOD meeting (the only meeting we've had in 2014, for which I have a copy of the draft minutes) which haven't been approved. Are those draft minutes considered official documents and, therefore, may be requested by the homeowner?

1. I say no you do not have the right to give them everything they request as you are not the sole judge and jury as to what they are entitled to. You could have well given them information they are not legally entitled to. You should have asked.

2. I say no to drafts of meetings. Again they are one person interpretation of what happened and until all approve, they are not official or even correct.

While I admire your search for openness, you have crossed the legal/proper procedure lines.

The problem that I'm facing, and the homeowners who share my perspective, is that the other BOD members believe that their interpretation of the covenants and by-laws, notwithstanding that their interpretation conflicts with the covenants and by-laws, is the ONLY interpretation, and that I am being obstinate.

For example, I was told by one director that we no longer have an ARB and we no longer have an ERB, that all previously appointed committees are "null and void" because we have a new BOD, and all committees serve at the pleasure of the BOD. AND none of the other directors objected to what he said.

I tell the folks who complain to me (and so far it's been one or two people who are complaining to me) that the information request should go to the BOD, because the by-laws say that the homeowners may request documents from the HOA. (The HOA, i.e. the Board, has yet to formalize how such requests will be handled. Before I got on the BOD, I sent my two document requests to the secretary/treasurer.) If the BOD doesn't respond, or if they don't get their answer within the ten days, then send me the request, and if I can't answer it myself, then I'll forward it to the rest of the BOD and to the property manager.

The by-laws set forth what information the homeowner is entitled to receive if requested. I'm not giving the homeowner "everything they request." I am not the sole judge and juror; but, as I said, the by-laws indicate what information the homeowner is entitled to receive upon request, and it is that information that is being requested, and which I am sending out without following a non-existent procedure.

I haven't crossed any lines. There are no procedures. The by-laws say what they say. The problem with "proper procedure lines" is that THEY DON'T EXIST! Since the HOA came into existence, except for regurgitating what is in the statute, the HOA has never developed any formal procedures for handling anything. Based on my review of the covenants, the by-laws, the statute, and our rules and regulations, there doesn't seem to be anything that would tell someone how to proceed.

Regarding draft minutes, it's not clear from the covenants, the by-laws or the state statute, that drafts are or are not official documents. I could argue that draft minutes are an official document, inasmuch as the document is provided by and generated by the HOA, and as long as it is clearly identified as a draft, then there should be no problem in giving it to a homeowner who asks for it. The president has decided (not by vote but by fiat) that draft minutes will not be posted on the HOA website. Once again, none of the directors objected to his pronouncement. (I wasn't on the board when this pronouncement was made.)

Draft minutes are not official documents. By their very nature, they are subject to review and revision by majority vote of the Board. Putting them out prematurely puts undue burden on the Board to justify the difference between a draft and a final document.

Well, Eugene, you sure have elicited a lot of advice! I'll repeat what Sheila, then I and now more suggest:

Write a proposal suggesting the procedure for Owners to inspect & copy documents. Quite recently a list of allowable documents in FL was on the forum. Anyhow, check your state laws. In CA the allowable materials for owners to inspect/copy is crystal clear and I think in FL too. In CA the procedure that owners must use to request these materials also is very clear, and I think in FL too.

The request in CA does not have to approved by the board at all--the PM can take care of it. CA permits these materials to go to the owners by email if they wish. In other word, you shouldn't have to re-invent the wheel.

In CA law, btw, owners may request draft minutes 30 day after the relevant open meeting was held. Draft should be stamped on each page and date stamped. WE get very few requests for records, etc.

In our HOA, Eugene, all owner requests are emailed or delivered to our PM. None go to any particular director and if that did happened, it would be forwarded to the PM. I suggest the same for your HOA.

So how many on the Board? How many dwellings? Detached homes? Or what?

720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—

(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. 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 his or her authorized representative for the use of a portable device.
(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection.
(b) A member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.
(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 association or management company 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 or management company employee or budgetary or financial records that indicate the compensation paid to an association or management company employee.
4. Medical records of parcel owners or community residents.
5. Social security numbers, driver 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. Notwithstanding the restrictions in this subparagraph, an association may print and distribute to parcel owners a directory containing the name, parcel address, and telephone number of each parcel owner. However, an owner may exclude his or her telephone number from the directory by so requesting in writing to the association. 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.
(d) The association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the residential subdivision or the association other than information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser or lienholder or the current parcel owner or member for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney fees incurred by the association in connection with the response.

In the majority of states, the Secretary is the caretaker or holder of the records of the association and should be the point of contact for such requests.

Obviously you decided to run for the Board because you saw a serious problem in the current communications. Now that you are on the Board, you have found that it is dominated by a single individual. While you may have other issues with current practices, your choice of where to start taking a stand is excellent.

Under different circumstances, I would recommend putting some kind of policy to the Board for a vote. But I get the impression that the vote will be however many to 1 - which doesn't get you anywhere.

Take a stand. Select a limited number of documents that have no controversy associated with them (required by CC&Rs or state law to be disclosed upon request). Get them to HOs 1 or 2 days after the request is received. Demonstrate by example to the reluctant members of the Board that there is nothing to fear by following the law instead of the autocrat.

Obviously, you joined the board with an agenda. Self appointed enforcer of sate laws and doucements as you see them. My guess in your documents IF they list the duties of Secretary that authority is not granted to you in your new role. As a single board member it is not your role to act as you deem necessary. Without support or ok from the remaining board members. Now you fake surprise when the other members are less than happy. My guess you have laid the ground for conflict going forward. Seems that was your plan all along. Do as you say because you now set procedures and act alone despite you having no authoirty to do so.
Yes, that should work out well......

You are wrong. You impart motive without evidence thereof. Still, you entitled to express your opinion.

I don't fake surprise. In fact, I don't fake anything. I anticipated the response from the other directors. What I didn't anticipate were some of the bone-headed responses I received, such as "We don't have an ARB or an ERB. All previous committees are null and void. Committees serve at the discretion of the board. The discussion is closed." This director has no clue. If we don't have an ERB, then we cannot carry out our enforcement mandate under ANY circumstances. And we DO have an ARB; but, according to this director that is irrelevant because the homeowners volunteered LAST YEAR, and this year we have a new BOD; so, all old committees no longer exist.

The duties of the officers are not spelled out in any of our governing documents. In the absence of any prohibition in the governing documents or in the statute, in the absence of any stated procedure in the governing documents or in the statute, in the absence of any consistent policy carried out over the years by previous boards, I will act as I feel appropriate or as I feel I am bound by statute, governing documents or ethical standards.

Eugene,

Let me expand on what I posted to Jon.

I'm not saying that you shouldn't have released the documents. I'm saying that you should have checked with the Board as to why the initial request appeared to not be acted upon. Then, once you have heard the response, you may or may not have made the same decision to release the documents.

At the very least, you could have said that in order to comply with State statutes, you will send the documents to them (again, after you have heard the reason/s why it wasn't being done).

BTW - did you ever ask that question (why the delay in response) of the Board? If you did, what was their response (I don't believe you ever said)?

According to Eugene - "there are draft minutes of a BOD meeting (the only meeting we've had in 2014 ...) which haven't been approved."

Many of the comments here have cautioned against Eugene creating liability that could affect the entire Board. But no one has commented on the Board's current practices creating personal liability for Eugene. The obligation to disclose is independent of the Board's collective decision making. What does Eugene do when the rest of the Board isn't listening?

If the other board members aren’t listening, Eugene has four choices (1) accept the board’s position and move on, (2) quit (3) educate the board and homeowners as to why a policy is needed and (4) utilize Steve’s suggestion and work with other homeowners in finding people who are willing to do the right thing, then vote out the ones who won’t.

I don’t like options 1 and 2, because I think he’s trying to do the right thing in promoting transparency. Eugene, you should keep pushing for disclosure – sure it may be a lonely and difficult walk at first, but if you stick at it and people see what you’re trying to do, they will rally around you. I prefer a combination of options 3 and 4, leaving option 4 as a last resort.

You didn’t say how long ago all of this happened, so it may be you need to give them a little time to cool off, and then revisit the issue. Start by apologizing for what you did, but emphasize why you did it and why it would behoove the Board to develop a policy to ensure this won’t happen again. Here are a few good reasons (in my opinion, anyway):

A policy will prevent unauthorized information from being disclosed
A paper trail can be developed so problems can be researched and addressed
Homeowners will get a better understanding of what the board is doing and why – if they have a better suggestion, bring it. They will also get more information on where the money’s going.
A policy can keep Board members in check – if they know they’ll ultimately be responsible for what the documents are or aren’t saying, they may pay more attention to what they do.

One way to drive home the need for a policy is to show them news stories about other HOA communities and what happened to rouge boards who tried to do whatever without any regard to the homeowners. It would be especially helpful if you find stories about board members who wound up personally liable for bad behavior. I find that if people aren’t inclined to do what’s right because it IS right, they might be persuaded if there’s a chance they’ll get socked in the wallet for doing wrong.

You will also need backup – encourage fellow homeowners to attend meetings – especially the ones who’ve asked for information and didn’t get it. There’s strength in numbers and there’s more at stake here than getting copies of documents – the Board needs to understand they serve at the pleasure of the homeowners and can be recalled or voted out if they don’t. Perhaps if more homeowners begin raising hell about not getting documents or the Board doing things that aren’t spelled out in the documents, they’ll change their tune. Just make sure you’re reading the documents also so you have a clear understanding of what the Board is supposed to do. I wouldn’t be surprised if your board colleagues are behaving the way they are because they don’t have a clue and no one’s called them on it. Good luck!

Steve

I find your recommendations viable except #1 (Eugene's posts indicate that the issue is refusal to disclose rather than delay in disclosure. One may be justifiable. The other isn't.) Thought you were doing fine til I got to the part where you said 2 wrongs don't make a right. Eugene's one-time release of information as a newbie on the Board pales in comparison to the Board's long-term intransigence to HO inquiries. The issues aren't equivalent by any stretch of my imagination.

Sheila

IMO, none of your 4 suggestions is likely to lead to a viable outcome for Eugene. Eugene is an elected representative of the HOs. The obligations Eugene has to the rest of the Board are secondary to Eugene's obligation to get the right thing done, which is to get a time-sensitive flow of information going to HOs sooner rather than later.

Eugene

You know the intricacies of your situation better than anyone. Get the disclosures flowing now. The policy statement, while clearly beneficial, is not a mandatory pre-requisite to mandatory disclosure.

Hello Tim

If the PM, President and counsel have all been made aware than as a member of a BOARD you should ask of those people why this request has not been answered or responded to. NOT take it upon YOURSELF to do so.

Eugene is NOT in any position to distribute records on behalf of the board because he thinks so..

And it would be good if all members of the board did in fact work together but this is not Eugene's agenda. Eugene has appointed himself high enforcer of record distribution and rather than running his decisions by those who also serve on the board hr decided best to do it HIS way.

Not exactly a team player not even close.

And he was elected just two months ago. My suggestion to those newly serving on our board sit back, watch, learn and listen before you decide magically you know what's best.

And I would agree more than likely there is much more to this story. Not just one board member trying to abide by the legal requirements of the law. My guess that is a lot of smoke.....

I believe I agreed with you on that.

I was simply pointing out that it's all the Directors responsibility to comply with applicable laws.


Perhaps, perhaps not. As Secretary of the Association, it's typical that it is the responsibility of that office to respond to such requests. As I pointed out (and agree with you on), inquiring why the initial request wasn't answered should have been done first.


Without knowing both sides of the story it's difficult to comment.

As I pointed out, I believe it's every Directors responsibility to comply with applicable laws and governing documents and to encourage and insist on this compliance from other Directors. Not having lived in Eugenes Association, I can only go by what has been posted. Based on those posts, it appears that there has been some issues with transparency within Eugenes Association. Therefore, it wouldn't be uncommon for an individual to consider increasing the Associations transparency as part of the things they wish to accomplish during there term of service.

I did this in my Association by volunteering to be the website administrator. Then, I obtained the Board's permission to digitize the records and place them on the website (some in a members only area). I believe that since I was volunteering to do the actual work vs. asking that someone else does the work is what provided the support within the Board to allow me to do this.


Always good advice to try and learn why things are being done a certain way so one can address the actual issue vs. simply changing things to try and address the symptoms.

Hello, Everyone:

Again, I appreciate everyone's input. Whether I agree with you or not, the variety of perspectives is interesting, for it presents a good picture of the landscape that one must traverse in the role of HOA officer/director.

I consulted with an attorney. According to the attorney, I don't need anyone's permission to respond to a document request. According to our governing documents and according to the state statute, I am obliged to respond to a document request from a homeowner, as long as what the homeowner is requesting does not contain confidential information, e.g. social security numbers. He said further that as the secretary I am responsible to ensure that all homeowners receive responses to their document requests, regardless of whether or not we have a property manager. The BOD cannot do anything to impede giving a response to a homeowner to a document request.

I am not responding to any one post. Some of them seem to be to be sprinkled with snarky comments; and that was what I was trying to avoid. I wanted to keep the discussion at the business level, and to stay out of the mud.

So. Are you acting as a member of the board or as a one man band with no regard for the other members of the board?

The reality is quite clear.

But since we all know lawyers are right all the time, especially those who give out advice for free, should be smooth sailing from here.

Because after 2 months of holding office Eugene knows it all.............Miraculous......

Should result in a positive working relationship with all those involved.

Well, first of all, we don't know if this happened or not. However, if it did, then as has been pointed out, the Association must do what is legally required. Since the financials are legally required to be open for membership inspection, they should have been released. Had I been in Eugene's position, I would have explained that aspect to the Board and informed them that since I already had the records I would release them in accordance with the law.

NOTE: This would have been after I had inquired about the initial request (as there may be things I was unaware of associated with the initial request) and after I had explained my understanding of the Statute to the Board and the Board discussed it.

Again, the larger issue appears to be as Eugene identified - the lack of a policy to establish procedures for such requests. This is the issue that needs to be addressed so future requests for documentation doesn't end up like this one did. If this is the only issue that Eugene can resolve during his term on the Board, it would have (in my opinion) been time well spent and his Association would be in a better place.

That is a choice everyone would have to make on their own and live with the consequences (both intended and unintended) of that choice.

I believe I said what I would do. However, I don't know the whole story and if I did what I say I would do may be different once the whole story is known.


Well, he won't know until he tries. Granted, one of the unintended consequences for Eugenes action is that the Board may think he is not a team player and it may be harder to get changes through now vs. before he made his decision to release the documents without talking to the rest of the Board.

Again, I suggested that Eugene drafts a proposal before bringing the issue to the Board.

This is simply one option to resolve issues. There are other options but they may require more time/energy than someone is willing to commit to. These include digitizing all the records and placing them on a website; gathering support from the members and recalling the other board members or simply not electing them; etc.

Interesting.

2 different approaches have been put to you Eugene:

1. Write a policy statement and propose that the Board approve it.

2. Put the Board on notice that on a limited set of documents requests, you will distribute them on request.

Both approaches ask you to to demonstrate some degree of restraint beyond your own review/conscience. While I don't believe you should go along to get along, I do think that you still need to prove yourself to both the members of the community and the members of the Board. I know that you will get support from the people who are behind you already, but there are others you need to reach.

Best of luck.