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ACCESS TO
OFFICIAL RECORDS (2010)
Access to official records is
regulated by FS Chapter 720.303(4)
+ (5). Legally, owners should have easy access to the
so-called documents. Nearly all documents are considered public, just a
few are considered protected -- see list below, according to FS
720.303(5)(c) 1-7
PLEASE NOTE: Although
boards and attorneys may try to hide certain documents, not all documents
are actually protected by client/attorney
privilege.
In theory -- and by statute --
every owner has the right to inspect, photocopy or receive copies of all documents --
10 business days after a written request has been made to the board. (See
Examples of written requests.) It is now required by
Florida statutes that you mail the request as a certified letter,
return receipt requested! The countdown starts
the day after confirmed receipt!
A little hint to save
expenses: In your request just ask to inspect the documents. Since
associations have the right to charge up to $0.50 for a copy, we have seen
boards dump boxes full of copies on owners -- and charge outrageous
amounts. Inspect the records first, and then ask for the specific
documents to be copied. That keeps you in control of the final cost!
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NEW RULES
(July 1, 2010)
FS 720.303(5)(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, without limitation, the costs of copying. The association
may charge up to 50 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 vendor or association
management company personnel and may
charge the actual cost of copying, including any reasonable costs
involving personnel fees and charges at an hourly rate for vendor or
employee time to cover administrative costs to the vendor or
association. The association shall maintain an adequate
number of copies of the recorded governing documents, to ensure
their availability to members and prospective members.
NOTE: The association
has to adopt rules and put them in writing! |
But since there is no real
enforcement, boards often are encouraged by their attorneys and management
companies to refuse owners access to these documents.
Especially financial records seem to be the problem.
FS 720.311 requires Presuit
Mediation Offer before taking these issues to court.
But if the mediation fails, you can take the issue to Small Claims Court.
If
you followed the rules of FS 720.303(4) + (5) and your association
didn't oblige, there is really not much to mediate. You have the right to
the $500 penalty and the cost of the procedure. The law is very clear!
Mediation is done with a straight YES or NO! No lengthy arguments, no IFs and no BUTs! Use
your money for filing fees with your local Small Claims Court -- you get a
free mediation there anyway!
Despite owners having success in court (See:
Small
Claims Court Law-Suit for Violation of Florida Statutes ) it's not
as easy as it sounds. We
have seen cases where boards fight in court to deny inspection of records,
while racking up legal fees, most likely as they try to cover up financial
irregularities!
This is one
issue that should be easily resolved by a fast ruling of an arbitrator or
administrative judge! It is
imperative that this is another issue that needs to be dealt with in the
legislature.
[Note:
The legislature attempted to deal with it (S1196 in 2010), but made an
even bigger mess out of it!]
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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, any 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 imminent civil or
criminal litigation or imminent adversarial administrative
proceedings until the conclusion of the litigation or
administrative 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 the association’s employees, including,
but not limited to, disciplinary, payroll, health, and insurance
records.
4. Medical records of parcel owners or community residents.
5. Social security numbers, driver’s license numbers, credit
card numbers, electronic mailing addresses, telephone 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.
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. |
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