Association Records: Navigating the Electronic "Paper" Trail

This at least should be a rule through the letter-writing world: that no angry letter be posted till four-and-twenty hours will have elapsed since it was written. ~ Anthony Trollope

In my life outside of community association law practice, I volunteer with Denver Public Schools (“DPS”). On more than one occasion, my work with DPS, and in other volunteer roles, has allowed me to better relate to the challenges that association board members experience in their roles as community leaders – whether it’s the time commitment, strong emotions, opposing views, an unclear governance model, or thousands of e-mails flooding my inbox, I’ve experienced it.

Most recently, I served as co-chair for a large community committee that participated in a year-long process of monthly, and sometimes weekly, meetings. At the committee’s inception, a member of the general public submitted a Colorado Open Records Act (“CORA”) request to DPS, asking for all documents related to the committee’s work. DPS administration informed me and the rest of the steering committee of this CORA request to make us aware that the contents of our e-mails would get released to the constituent.

I can’t say whether everyone involved in the committee’s e-mail discussions always thought about the CORA request before hitting “send,” but I can say that I remained aware of it throughout the committee’s work. We had embarked on a process that was open to a lot of criticism and skepticism from the start; one “off the handle” e-mail could undercut our effectiveness and credibility in the community and leave us wishing we had followed Mr. Trollope’s rule. As if to remind us of the potential impact of our correspondence, the CORA requester occasionally posted comments – with quotes from our committee discussions – on a local education website. We could not control what happened with those e-mails once they were released pursuant to the CORA request, but we could control their content before sending and, perhaps more importantly, establish guidelines for when and how to use e-mail in the first place.

The introduction of HB12-1237 in the Colorado legislature this week provides a timely opportunity for association boards to consider their associations’ records policies, including policies concerning e-mails. As introduced, HB12-1237 would include the following types of e-mails within the definition of “association records”:

Written deliberation and the votes cast by executive board members which are directly related to an action taken by the board pursuant to C.R.S. 7-128-202 or the association’s bylaws;

Regardless of whether HB12-1237 makes its way to the Governor’s desk for signing into law, associations should adopt policies concerning e-mail use, decision-making by e-mail, and e-mail retention. We’ve previously written about governance by e-mail, the requirement for open meetings, and board action without a meeting. We’ve also talked about curtailing unfettered e-mail discussion. The litigation discovery process is another reason to establish policies concerning e-mails. Board policies can proactively address many of these issues while creating clear expectations for board members and owners.

If your association is ready to get control of its e-mail, contact one of our attorneys for assistance with policies to protect your community.