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California Email Privacy

Started by JaneK • 28 replies • 2109 views

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JaneK (California)
Posts: 175
Posted:
Our board wants all communication to go thru the rep. But not all communications from HOs are sent to the board and often the rep is rude and downright nasty in replies. In order to keep management’s email responses to something Miss Manners would approve of, I’ve been Ccing all communication and the rep’s responses to the board and other interested neighbors, just to prevent an unwarranted attack.

The rep’s emails always come with a disclaimer stating that distribution or copying of the email is prohibited. Prohibited by what? I state in mine that there can be no expectation of privacy with email and that it will be distributed.

I’ve done a bit of checking on the privacy of email and so far come up with it basically it ain’t. Anyone else have info on this subject? Are we tackling an entirely new legal field here? Are there precedents?

Jane
GloriaM (North Carolina)
Posts: 829
Posted:
Jane:

If someone has a disclaimer below their signature line that warns you not to cut, paste, copy, disburse etc., and you go right ahead and do it. Then yes, it is against Federal Law to pass along confidential emails that is intended for the recipient. Don't be fooled for 1 minute because its online it falls under free speech or public knowledge.

If I am emailing you and you pass it along, that person could pursue it in the courts and win because they had a disclaimer on the email warning you.
JaneK (California)
Posts: 175
Posted:
OK,
Maybe nit-picky, but the first email is mine and it states that it will be copied, distributed etc. Which one takes precedence?
Jane
JaneK (California)
Posts: 175
Posted:
Oh, can you give me the number, code etc of the Federal law?
Thanks mucho,
Jane
JaneK (California)
Posts: 175
Posted:
Found a few also:
http://www.securitycatalyst.com/blog/2007/10/17/tsc-insight-do-email-disclaimers-matter/
http://clinicallawyer.com/files/2007/07/31/those-confidentiality-disclaimers-at-the-end-of-your-email
http://www.theconglomerate.org/2007/09/email-disclaime.html

I suspect if I ask a live lawyer I'll get yet a different answer.

Talk about confusing............
Jane
BrianB (California)
Posts: 2,820
Posted:
wow... this is a muddled mess. I think it will take years for the courts to catch up... and we are already a technology ahead. Once they decide Emails, then we have to decide text messaging, and instant messaging, which are different technologies.

It looks like there isn't much statute for most emails: copyright law protects some ideas put down in an email, but that law protects those ideas scratched on a rock, tattooed on a chest, or stamped on papyrus, so it's not unique to email. Other laws dealing with the HARM caused exist, but once again, they aren't email specific.

The OP raised a point, if my email says "this email is open to publication" and you reply with an email that says "no part of this may be forwarded or reproduced", whose legal banter wins? Can that be decided through contract law? ie, i make an offer (can be published), you reply with a counteroffer (no it cannot), and we continue until acceptance is made? If so, when IS acceptance made, since most of this stuff is simply stuck at the end of the signature by boilerplate. WHat if I said in mine "Replying to my email is acceptance of my offer that it may be published"? is that legal? after all, you can keep it from being published by not replying.

What if my boilerplate said "Forwarding this email automatically entitles the original author to $1 US, payable upon demand". Can i make that work?

JaneK (California)
Posts: 175
Posted:
BrianB,

I believe you are correct,
it is a muddled mess.

Jane
DJ1 (Ontario)
Posts: 798
Posted:
At least ESP is still ok!
ClaudeV (Florida)
Posts: 86
Posted:
Florida has a "Sunshine Law" that mandates ALL communications by governmental agencies, and an HOA is included, MUST be "in the sunshine", ie open for public inspection, reading etc. This includes emails, letters, recorded meetings etc.

You will not find any "disclaimers/restrictions" on official emails in this state since it is illegal to do so. It's a GOOD LAW and one that all the other states should adopt!
BrianB (California)
Posts: 2,820
Posted:
Quote:
Posted By ClaudeV on 06/08/2008 10:34 AM
Florida has a "Sunshine Law" that mandates ALL communications by governmental agencies, and an HOA is included, MUST be "in the sunshine", ie open for public inspection, reading etc. This includes emails, letters, recorded meetings etc.

You will not find any "disclaimers/restrictions" on official emails in this state since it is illegal to do so. It's a GOOD LAW and one that all the other states should adopt!

while a great idea, and a solid law, i do not believe it requires that ALL communications by governmental agencies be open for public scrutiny, just some of them. There are plenty of communications by government agencies that this law won't apply to.
JohnM3 (Florida)
Posts: 288
Posted:
Brian : Leve Florida alone we like our laws and use them to our defense as well as offense.
JaneK (California)
Posts: 175
Posted:
Whether or not HOAs are ‘government agency’ in California is another issue. More like a dictatorship or a concentration camp.

This disclaimer will probably hold up in court:

ATTORNEY PRIVILEGED/LIMITED DISTRIBUTION. This communication, together with its attachments, is intended to be confidential pursuant to all state and federal laws pertaining to the attorney-client privilege and the attorney work product doctrine. Do not forward or copy without consulting with a XYZ Company attorney. If you retain this message, it should be held separately in a file clearly marked "Attorney Client Privileged Material".

Jane
BrianB (California)
Posts: 2,820
Posted:
remember that Jane's statement only works if the material actually IS between an attorney and their client. if you forward "privileged" information around too much, it loses privilege.

GlenL (Ohio)
Posts: 5,491
Posted:
That might work however if I'm one of the clients subject to the attorney - client privilege, I can wave privilege without consulting the attorney, s/he cannot. The best policy to maintain is DO NOT say anything in an e-mail that you do not want someone else to read. The BOD and the MC can email back and forth about what a pain in the a** a homeowner is but don't expect a disclaimer to protect you if someone subpoenas the emails. Also they would IMO be subject to an information request from an H/O unless they dealt with a contract, legal issue or enforcement action against another H/O.
Studies show that 5 out of 4 people have problems with fractions
BrianB (California)
Posts: 2,820
Posted:
good points glen. i forgot that the client can (and often does accidentally) waive privelege.
JaneK (California)
Posts: 175
Posted:
I borrowed that from a lawyer friend.

Glen has some excellent points, the emails are ‘records of the association.’ “The best policy to maintain is DO NOT say anything in an e-mail that you do not want someone else to read.” Darn good advice! I’ll add, “Think VERY carefully before you hit that ‘send’ button!”

Jane
KirkW1 (Texas)
Posts: 1,665
Posted:
Jane,

The current business climate is that nearly every company has a boilerplate warning that the information in the email is privileged and confidential. I am sure much of it is to "cover their butt" in that they are taking what steps they can to prevent loss of information. But the truth is that little can be done in many cases. In fact, by most estimates in many cases sending sensitive information via email is in itself a violation of privacy.

Your sending the emails to the BOD certainly would not be anything actionable. Besides, it would be more up to the BOD to pursue the situation and your sending them emails could hardly be considered a breach of privacy when it concerns business of the HOA.

As for the other information, well it would be hard to pursue a copyright in this case as well.
JaneK (California)
Posts: 175
Posted:
Quote:
Posted By KirkW1 on 06/10/2008 8:33 PM
Jane,

In fact, by most estimates in many cases sending sensitive information via email is in itself a violation of privacy.

I would definitely agree with that.

I’m sending to other interested neighbors as well as the board. There is absolutely nothing confidential in any of the emails, if fact one concerned a problem with one of our contractors and everyone should know about it.
Jane

MD (California)
Posts: 27
Posted:
I think the courts are indeed far behind on this issue. However, I think there are a few important points:

HOAs are non-profit mutual benefit corporations, not governmental bodies. There's a case somewhere about this issue. I have heard HOAs referenced as quasi-government but statute in California is pretty clear HOAs are non-profit mutual benefit corporations.

My personal opinion about email from members is that it should go through the management company. That way there is a clear record and the management company is responsible for responding to member communications. However, if there is a vendor issue (e.g. rude manager, etcetera), the board of directors is responsible for managing the vendor. I've had this experience in my HOA. The property manager is many words I am too much of a lady to repeat. I copy the board president on every communication. I don't think there's anything wrong with that as long as the communication does not involve anything privileged by law. The recent update to Davis-Stirling about enhanced association records clearly defines what is available to members. That includes email. Fiore, Racobs and Powers had an excellent article on this in a 2006 newsletter reiterating association records are open to members except for that which is restricted by privilege. I'll try to attach the newsletter to my post for reference.

I'm not sure if you are on the board of directors. I am curious why your HOA is not managing vendor performance.

Emma
JaneK (California)
Posts: 175
Posted:
Quote:


I'm not sure if you are on the board of directors. I am curious why your HOA is not managing vendor performance.

Emma

I am an ex-board member, possibly future board member and I too, am curious why our board is not dealing with this. Sometimes I think they forget who works for who.

I believe that requests for maintenance, reports of maintenance problems,etc. should go to the management company. Opinions and thoughts should go to board members. Board members should be willing to listen to homeowners and they are not!

Jane
CaroleJ (Georgia)
Posts: 70
Posted:
JaneK - In your first email to the management company, do you also cc the intended recipients then or do you wait for the management company's answer before forwarding? If you do the former, it might make it harder for the management company to complain or come back later to bite you with their privacy policy since the cc recipients are so clearly visible, even if their reply is only to you. Just a thought.

Isn't CA HOA law governed by the CA Code for Non-Profit Orgs? You'll probably find the best law pertaining to your situation, even if not the management company's, in there. GA Non-Profit Code enthusiastically endorses email for most everything, except death maybe.
JaneK (California)
Posts: 175
Posted:
Former, cc recipients with first email. And have been told by mgmt rep not to cc to non board members. (Not all on the cc list are board members, they are concerned neighbors.)

I don't think they can tell me or anyone else who we can send emails to. I'm looking at some ACLU freedom of speech cases at the moment.

Jane
CaroleJ (Georgia)
Posts: 70
Posted:
Ran into the following below as I was reading some archives at AssociationTimes.com today.

Also, this site will save you some time on the ACLU and 1st Amendment issues. The Supremes ruled for the HOA in the Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association case last year. In a unanimous decision, the Court essentially held that an HOA can restrict free speech because it is not a governmental authority. However, because New Jersey's Constitution includes an affirmative right to free speech (vs the negative right in the US Const; Congress shall make no law...), the Court ruled that any restriction on free speech must be reasonable. So at least the Court is willing to hold free speech issues to a higher standard, even on private property. So, what does the CA Const say about free speech, and is it positive or negative?

Tips for Avoiding the Pitfalls of Email

In this age of instant communication, email is playing an increasingly important role in the day to day operations of community associations. Boards, managers, homeowners, attorneys and contractors routinely use email to pass along information quickly and efficiently. Quick and easy communication is a good thing, right? Well, under most circumstances, yes. However, in my experience providing representation for community associations, the instantaneous, yet somewhat removed (i.e., not face-to-face) quality of email communications, if misused, can cause real problems within a community association.

Below is a list of tips that Boards and professionals working with community associations can use in order to keep email as an effective tool of communication, rather than a weapon of mass destruction:

[...]

5. BE CAREFUL NOT TO FORWARD PRIVILEGED INFORMATION.
All too often, in a genuine effort to keep the lines of communication open with members, a well-meaning Board member forwards an email to a non-Board member containing advice from legal counsel on an issue. The Board needs to be aware that this practice, even with good intentions, could operate to waive the attorney-client privilege. Board members should be careful to look at the list of recipients when communicating with the Association’s attorney via email and make sure that there are no non-Board members that are receiving legal advice meant for the Board.


Nowhere does it say there is privilege between you and the PM Co. Nor should there be for what you are talking about. Good grief, what next? A security clearance to email a property manager? Hope this helped.
JaneK (California)
Posts: 175
Posted:
Thanks, it does.

I intend to take a closer look at the Twin Rivers case. My concerns in the past have been with count six; the legality of board members discussing association issues with their 'constituents.'

This is a good article by Stephen Marcus, Esq. on email:
http://bostoncooperator.com/articles/50/1/Fast-Convenient-and-Possibly-Dangerous/Page1.html

The California First Amendment Coalition
http://www.cfac.org/content/
has alot to say about the subject. I'll be re-reading that.

I agree, what the management rep is asking is way out-of-line. None of the emails have been 'priviledged' information, in fact, the communications are things the entire community should know, such as problems with contractors and trespassers damaging common and private property.

Thanks again
Jane
ClaudeV (Florida)
Posts: 86
Posted:
This discussion is why I love our "Sunshine" law in Florida. Here, except for priviledged attoney/client communications, EVERYTHING is "public" to the members of the HOA. In fact, as a Board member, I feel it is my DUTY AND RESPONSIBILITY to the people that elected me to represent the ENTIRE MEMBERSHIP, not just a few "friends". We have 5 Board members, a change from 3 in previous years. ALL 5 of us have an "open door" policy with ALL members. They can come discuss any and all issues of the HOA at anytime. The Board members vote on issues to take action on at our meetings which are held every 2nd Tuesday or every odd month.

We openly discuss issues verbally, in emails, notes, letters or any other medium that we choose.

It would be wonderful if everyone approached BOD duties without "agendas". We see enough of that crap from our politicians, don't we??? It would also be wonderful if everyone practiced "government in the sunshine", and HOA's are "mini-governments" registered with each respective state.

And finally, with the exception of communications with attorneys for an HOA, I feel that if anyone is anxious about who sees said communications definately has SOMETHING TO HIDE! Honest, ethical people do NOT have anything to "hide"!!! Think about it!
JaneK (California)
Posts: 175
Posted:
Wish you were on my board of directors!!
Association business should be open and transparent!
Jane

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