FOIA - HOATalk Forum

SusanA4 (California)
Posts: 13

Posted:

The noise and activity at the HOA-owned beach where I live have increased to a level where golf carts, quads, and now snowmobiles disturb the 10+ members whose homes abut the beach. After asking the board (since about 2009) for relief, some members filed a lawsuit in 2013. After my HOA paid about $20K for legal defense, the complaint was finally dismissed because of governmental immunity.

I have been an HOA trustee since 2005. My position has consistently been that our HOA should have a few rules governing use and operating hours of the beach, and that the members who live near the beach have the right to some peace and quiet, especially at night.

Because of my position, I have become the target for harassment from other trustees, most of whom have RVs and favor unlimited use of the beach, and other members. After the lawsuit was filed, the harassment increased. Many members mistakenly believe that I encouraged the plaintiffs to file the lawsuit, and mistakenly believe that I provided "inside" board information to aid the plaintiffs' case.

At last night's HOA trustee meeting, the HOA president (who has stated that I am the cause of the lawsuit) handed me a FOIA request for all the e-mails between me and the former plaintiffs. FOIA requests were also given to two other trustees whose positions about the beach are similar to mine. The HOA board is split with 7 in favor of no rules governing the beach and 3 in favor of some rules.

I should add that the group of 7 trustees has tried to oust me numerous (four) times.

My HOA is actually a Summer Resort Owners Corporation, and the Michigan AG has opined that SROs are municipalities. For that reason, my HOA is subject to OMA and FOIA.

I'm leaving out much of the story, but hopefully there is enough information to get some opinions.

My questions are:

1. Does the president have the authority to FOIA me? My interpretation is that the president does not have that authority on his own. The bylaws list the president's duties as:
- Open and preside at all meetings.
- See that meetings are carried out in an orderly manner in accordance with parliamentary procedure.
- Appoint committees as needed subject to the approval of the membership.
- See that the officers faithfully perform their dutes.
- See that the purposes of the Corporation are properly accomplished.
- Call Special Meetings whenever the need arises as described in Article IV, Section 03.

2. Can I be FOIAed? My interpretation is that a governmental body can be FOIAed, but not an individual. My HOA does not have any retention policy for e-mails. Others who have been FOIAed in the past have responded that they've deleted their e-mails.

Thanks for your thoughts on this matter.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

? What does your attorney say ?

? Why would you place ANY value on MY response ?

D'OH

TimB4 (Tennessee)
Posts: 21,059

Posted:

I am certainly no lawyer and do not work in the legal profession. Since your AG has ruled that your Association is considered a municipality and subject to FOIA. Since the President served you a FOIA request, expect that the request came from a member of the Association and not as a member of the Board. Therefore, request permission from the Board to seek legal advice from the Assocaitions attorney (since he is giving the request to a member of the Board) on how to respond to such requests.

Another option would be to seek legal advice on your own and then submit a bill to the Association for legal fees. However, you should really only do that if the Board denies your request to discuss the issue with the Assocaitions Attorney.

Stick to the argument that the request came from a member of the Association to a member of the Board and not from a member of the Board. Typically, volunteer board members are to be indemnified for legal fees.

NpS (Pennsylvania)
Posts: 4,216

Posted:

1. Your Prez may be operating outside his stated authority. But with 7 votes to 3 in his pocket, I expect that he could formalize the request on behalf of the SRO. You could make noise on this issue - but it could backfire.

2. The question you haven't answered is whether you were operating in an official capacity on behalf of the SRO or in an individual capacity when you wrote the emails. If you were acting individually, I cannot see how FOIA would apply to you.

3. I think you have greater FOIA rights to the Prez's emails since he apparently believes that he has the right to act on behalf of the trustees without putting matters to a vote.

4. The opportunity for discovery ended when the case was dismissed. It appears from what you wrote that the intent of the FOIA request is to hang you out to dry personally. That intent has nothing to do with pursuing SRO business, and IMO would be an inappropriate FOIA request. But you should check with a lawyer.

5. There is also the privacy rights of the individuals who emailed you to consider. As stated above, the right to discovery ended when the case was dismissed.

Sikubali jukumu. Read all posts at your own risk.

JonD1
Posts: 2,350

Posted:

I would suggest you retain the services of an outside attorney versed in HOA matters for guidance.

I would avoid using the HOA's lawyer as their position might lead to them discussing this matter with other board members even perhaps the President.
Money creates loyalty and the HOA lawyer like most wants their money to continue.

As for my personal opinion the president has no legal ability to FOIL records of individuals in personal e-mail exchanges. FOIL requests as I understand them are for government agencies and entities.

I would not honor any such request. And IF some e-mails were to exist that might do you harm take a lesson from Tricky Dick and erase the tapes now.

My guess the President is trying to bluff his way into you satisfying his demands. Speak with a lawyer then tell him politely, or have the lawyer notify him to shove his FOIL request.

SusanA4 (California)
Posts: 13

Posted:

The president stated that he wanted to be ready in case the beachfront property owners sue again. That might be somewhat true, but I think it's a red herring.

Although I believe the 7 are continuing to harass me, my concern is not really for me. (After my term is up this June, I'm done.) I'm proud to say that none of the e-mails casts me in an unfavorable light. I believe the 7 are looking for ways to continue to provoke the beachfront property owners. Some of the 7 have admitted to reporting the beachfront property owners to local and county officials for all sorts of invented violations.

From what I'm reading in Michigan's FOIA, it looks like the president improperly FOIAed me personally. It looks like he would need to FOIA the HOA (essentially himself!), and include/describe me in his request.

I would not use the HOA attorney. In a brief supporting a motion to dismiss, the attorney described that I was responsible for the lawsuit by giving plaintiffs inside information. (Not only did I not give plaintiffs any inside information, I don't even know what inside information would be. The brief did not include any specifics or description of what the inside information was. Getting off topic, sorry.)

What a mess. I think I have 20 days to respond.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By SusanA4 on 02/12/2015 6:13 AM

2. Can I be FOIAed? My interpretation is that a governmental body can be FOIAed, but not an individual. My HOA does not have any retention policy for e-mails. Others who have been FOIAed in the past have responded that they've deleted their e-mails.

My understanding is no. FOIA gives you the right to ask the government for information. It doesn't give the right for any person to ask any other person for information. If someone wants information from you relevant to a lawsuit, then the "discovery" process of the lawsuit would provide that.

Escaped former treasurer and director of a self managed association.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Quote:

Posted By JohnB26 on 02/12/2015 6:18 AM
? What does your attorney say ?

? Why would you place ANY value on MY response ?

D'OH

D'OH

JohnC46 (South Carolina)
Posts: 14,265

Posted:

MI FREEDOM OF INFORMATION ACT

Act 442 of 1976

AN ACT to provide for public access to certain public records of public bodies; to permit certain fees; to prescribe the powers and duties of certain public officers and public bodies; to provide remedies and penalties; and to repeal certain acts and parts of acts.

I am not nor do I play a layer.

I would argue an HOA is not a public body. You want My Emails then sue and let them come out in the discovery process.

Either the President does not know or he is bluffing. Either way, tell him to buzz off.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By SusanA4 on 02/12/2015 6:13 AM

My HOA is actually a Summer Resort Owners Corporation, and the Michigan AG has opined that SROs are municipalities. For that reason, my HOA is subject to OMA and FOIA.

I am no expert on FOIA, but I would think your personal emails would come into play only if they were either received, forwarded, or sent using an association email account. In any event, the FOIA request should have been served on the association and not on an individual board member.

Assuming that there is not a board resolution requesting your emails, this request is being made by someone other than the association. If the president should choose to sue, you should be covered by your association's D&O policy. Make some notes as to what you must do to make a claim should it come down to that. (There is precedent for D&O covering board members sued by other board members.)

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JohnC46 on 02/12/2015 11:59 AM

I would argue an HOA is not a public body. You want My Emails then sue and let them come out in the discovery process.

John, You may have missed the part where the State Attorney General ruled that the OP's Association is considered a municipality and subject to FOIA. It has something to do specifically with how that Association is set up and MI laws.

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

Posted By SusanA4 on 02/12/2015 6:13 AM

My HOA is actually a Summer Resort Owners Corporation, and the Michigan AG has opined that SROs are municipalities. For that reason, my HOA is subject to OMA and FOIA.

I think you need to confirm that

"The FOIA regulates and sets requirements for the disclosure of public records by all public bodies in the state."

"Attorney General Opinion No. 6563, p. 27, January 26, 1989.
The FOIA does not apply to a private nonprofit corporation."

"Coverage:
The FOIA sets requirements for the disclosure of public records by all public bodies in the state. All state agencies, county and other local governments, school boards, other boards, departments, commissions, councils, and public colleges and universities are covered."

"a county, city, township, village, inter-county, inter-city, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof; or"

All found here: https://www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf

I could find nowhere that the Michigan AG opined that SRO are in fact municipalities. To the contrary they are not a public body, they are a private non-profit and they are not a county, city or township.

MarkM31 (Washington)
Posts: 556

Posted:

http://www.legislature.mi.gov/(S(ew3pfy55q4webn45mp4cjo55))/documents/mcl/pdf/mcl-Act-137-of-1929.pdf

MarkM31 (Washington)
Posts: 556

Posted:

Found it
http://www.ag.state.mi.us/opinion/datafiles/1990s/op10013.htm

Seems like the FOI could be applicable, but if you are in fact a private non-profit, then the FOI may not be applicable.

Anyway, don't turn over your emails.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MarkM31 on 02/12/2015 8:07 PM
Found it
http://www.ag.state.mi.us/opinion/datafiles/1990s/op10013.htm

Seems like the FOI could be applicable, but if you are in fact a private non-profit, then the FOI may not be applicable.

Anyway, don't turn over your emails.

This ruling relies on the following fact to determine that an SRO is a public body:
To assure enforcement of this authority, the corporation's board of trustees is authorized to appoint a marshal "whose duties shall be to enforce the by-laws" and who "shall have the authority of a deputy sheriff in maintaining peace and order and the enforcement of law on the lands under the jurisdiction of the corporation."

If you don't have a deputy sheriff or marshal, that would reduce the likelihood that your SRO would be considered a public entity.

Sikubali jukumu. Read all posts at your own risk.

SusanA4 (California)
Posts: 13

Posted:

AG Opinion No. 6942 describes two types of HOAs:

#1 - A private, voluntary unincorporated association of lake property owners is not a "public body" subject to FOIA

#2 - A corporation formed under the summer resort owners corporation act, 1929 PA 137 is a "public body" subject to FOIA and OMA.

My HOA falls into the second category because it was formed under PA 137. So, I feel fairly confident that FOIA applies to my HOA.

A key part of the opinion seems to be whether membership in the HOA is voluntary or mandatory. If membership is voluntary (say, a number of homes on a street forming a coalition to petition to have a speed limit changed, plant trees in a common area, or other collaborative activity), then it seems okay for members to meet and make decisions in private. On the other hand, membership in an SRO is mandatory. The board of trustees can use your dues funds to buy and sell property, create ordinances, levy fines, and make other important decisions. In that case, it seems to make really good sense that all those decisions must be made in an open meeting.

NpS (Pennsylvania)
Posts: 4,216

Posted:

I see what you are saying.

Under those circumstances, I would demand a formal trustee policy statement stating that every email between a trustee and a member or between a trustee and a trustee is subject to FOIA.

Sikubali jukumu. Read all posts at your own risk.

MoM (Massachusetts)
Posts: 10

Posted:

This sounds like a fishing expedition headed by your association president. I would forward the request to the attorney that handled your original lawsuit and let them respond.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

simply request a court order

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JonD1 on 02/12/2015 7:27 AM
I would suggest you retain the services of an outside attorney versed in HOA matters for guidance.

I would avoid using the HOA's lawyer as their position might lead to them discussing this matter with other board members even perhaps the President.
Money creates loyalty and the HOA lawyer like most wants their money to continue.

My guess the President is trying to bluff his way into you satisfying his demands. Speak with a lawyer then tell him politely, or have the lawyer notify him to shove his FOIL request.

I would have to mainly agree with what JonD stated and as I noted. I personally would get a couple of attorney opinions (even if one is HOA) you would at least have outside attorney opinion to compare. Because lawsuit is complete there potentially is no need for President to make such request and agree with Jon he is digging in the dirt and maybe bluffing to obtain info for his personal vendetta.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By JanetB2 on 02/15/2015 9:05 PM

Posted By JonD1 on 02/12/2015 7:27 AM
I would suggest you retain the services of an outside attorney versed in HOA matters for guidance.

I would avoid using the HOA's lawyer as their position might lead to them discussing this matter with other board members even perhaps the President.
Money creates loyalty and the HOA lawyer like most wants their money to continue.

My guess the President is trying to bluff his way into you satisfying his demands. Speak with a lawyer then tell him politely, or have the lawyer notify him to shove his FOIL request.

I would have to mainly agree with what JonD stated and as I noted. I personally would get a couple of attorney opinions (even if one is HOA) you would at least have outside attorney opinion to compare. Because lawsuit is complete there potentially is no need for President to make such request and agree with Jon he is digging in the dirt and maybe bluffing to obtain info for his personal vendetta.

Where I in your shoes, I would respond to the FOIA request with a polite response as follows:

Dear Mr. (Insert Name Here)

This is a response to your FOIA request for all emails between myself and plaintiffs in the lawsuit against the association styled (Insert cause name and case #)
I respectfully refer you to the answer of respondent "Pressdram" in that seminal British legal proceeding "Arkell vs. Pressdram"

Sincerely Yours

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By NigelB on 02/16/2015 5:29 PM

Posted By JanetB2 on 02/15/2015 9:05 PM

Posted By JonD1 on 02/12/2015 7:27 AM
I would suggest you retain the services of an outside attorney versed in HOA matters for guidance.

I would avoid using the HOA's lawyer as their position might lead to them discussing this matter with other board members even perhaps the President.
Money creates loyalty and the HOA lawyer like most wants their money to continue.

My guess the President is trying to bluff his way into you satisfying his demands. Speak with a lawyer then tell him politely, or have the lawyer notify him to shove his FOIL request.

I would have to mainly agree with what JonD stated and as I noted. I personally would get a couple of attorney opinions (even if one is HOA) you would at least have outside attorney opinion to compare. Because lawsuit is complete there potentially is no need for President to make such request and agree with Jon he is digging in the dirt and maybe bluffing to obtain info for his personal vendetta.

Where I in your shoes, I would respond to the FOIA request with a polite response as follows:

Dear Mr. (Insert Name Here)

This is a response to your FOIA request for all emails between myself and plaintiffs in the lawsuit against the association styled (Insert cause name and case #)
I respectfully refer you to the answer of respondent "Pressdram" in that seminal British legal proceeding "Arkell vs. Pressdram"

Sincerely Yours

Had to look it up Nigelv-

In the case of Arkell v. Pressdram (1971), the plaintiff was the subject of an article relating to illicit payments, and the magazine had ample evidence to back up the article. Arkell's lawyers wrote a letter which concluded: "His attitude to damages will be governed by the nature of your reply." The magazine responded: "We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off." In the years following, the magazine would refer to this exchange as a euphemism for a blunt and coarse dismissal: for example, "We refer you to the reply given in the case of Arkell v. Pressdram". As with "tired and emotional" this usage has spread beyond the magazine.

Sikubali jukumu. Read all posts at your own risk.