Robert Braverman in Legal/Financial on October 11, 2018
The right of condominium unit-owners and co-op shareholders to inspect their building’s books and records and obtain lists of the names of their neighbors has existed for many years. Until recently, it was not a hotly or frequently litigated issue. That all changed with the 2016 Appellate Division, First Department decision in the case Pomerance vs. McGrath, which expanded the rights of condominium unit-owners not only to inspect books and records, but also to make copies of them – provided the unit-owner is seeking the information for a good-faith purpose and agrees to sign a confidentiality agreement.
That 2016 decision reaffirmed a 2013 finding in the same case that a condominium board is required to provide a requesting unit-owner with “a list of unit-owners and their contact information.”
While the scope of what constitutes “contact information” has not been addressed by the courts, I have been involved in several disputes that have arisen with respect to the disclosure of unit-owner email addresses. This is a slippery slope.
On the one hand, email is probably the most common form of communication today, and if the underlying intent of the statutes and case law governing disclosure of information is to avail owners of the opportunity to communicate with their neighbors, then it would seem that email addresses ought to be included in the scope of “contact information.” On the other hand, unlike mailing addresses or phone numbers, which are generally obtainable by other means or are a matter of public record, email addresses are not so readily available. When they’re provided to a managing agent, I would submit, they’re given with some expectation that they will not be freely disseminated to third parties.
People supply work emails that in some industries are regulated and – depending on the employer’s internet policy – even monitored. Even if a unit-owner’s email address is not subject to such limitations, there might be a fundamental desire on the part of the unit-owner not to be bombarded with emails from a disgruntled neighbor who doesn’t like the color of the new hallway carpeting. Moreover, there is a danger that once email addresses are provided to a requesting unit-owner, that person can be the victim of a hacking scheme or some other cybercrime, and the email address could fall into the wrong hands. Less harmful, but no less annoying, would be if the requesting unit-owner was to sell or otherwise distribute the email addresses to a mass marketer. Yes, that would be a breach of the confidentiality agreement the unit-owner can be required to sign, but once that horse is out of the barn, it can’t be put back in.
These competing interests require a balancing of the equites – at least until there is some judicial or legislative clarification of the issue.
My approach has been that unless the members of the board have availed themselves of owner email addresses for campaign or other promotional purposes – that is, anything other than communicating the regular business of the building, such as reminders for dates of meetings and other events, service changes or disruptions, and so forth – email addresses should NOT be provided to a requesting unit-owner. However, if the board or any member has utilized the list of owner email addresses, either for election or other self-promotional purposes, I believe that information should also be made available to a requesting unit-owner. To refuse to do so under these circumstances would provide incumbent board members with an unfair advantage. Remember: the goal here is to treat everyone equally and fairly.
Robert Braverman is principal and managing partner in the law firm of Braverman Greenspun.
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