Q. If a shareholder's only way of learning what a board is working on is through email communication, do they have a legal right to access board members’ emails, including personal or business accounts that may be used, and are these rights different for residents in condos and HOAs? How are confidential communications treated when a board member discusses things that may not pertain to board activity, and how are privacy rights balanced against a shareholder’s right to information? 

                            —Seeking Information

A. “Email is an efficient, convenient, and ubiquitous form of communication in today’s business world,” says Ben Flavin, a partner at New York law firm Braverman Greenspun. “Many people have both a personal email address and a work email address. Board members of cooperatives often communicate much of the board’s business through email. Shareholders in cooperatives have the right through New York’s Business Corporation Law and a history of case law to inspect a cooperative’s books and records. This includes emails sent by board members containing co-op related business.

“To inspect a co-op’s books and records, shareholders must provide the board with a ‘proper purpose’, and the request must be made in good faith,” he goes on to say. “Typically, a shareholder’s right to inspection includes all co-op records related to the shareholder’s proper purpose for making such a request. This may include board emails discussing co-op-related business—again provided the information is sought for a reason intended to be in the interest of the cooperative. 

“Shareholders may be able to obtain access to board members’ emails if those emails are sent without expectation of privacy, or as privileged communications.  This could include emails sent from and received by the board member’s personal and work email accounts.  Emails sent from a work email account may be governed by an employer’s policy that creates employer ownership of all emails from that work email account. If such a policy exists, and a board member uses that email address for co-op business, there can be no expectation of privacy and attorney-client privilege may be waived. Subpoenas can be served upon both personal and business email accounts. The user of those accounts, in this case the board member, may expose not only their personal lives and professional work. They also risk exposing what may have otherwise been privileged board communication.  

“Boards can require shareholders to sign a nondisclosure agreement for information considered sensitive or confidential. A board may also try to limit inspection of the cooperative’s records if the board determines the shareholder’s intent is not for a purpose in the interest of the co-op or otherwise made in bad faith. If a Board determines certain information is privileged or sought in bad faith, the shareholder may be required to seek judicial intervention to obtain those documents. For the purposes of email use and obtaining information, the rights of shareholders in co-ops and unit owners in condominiums are treated similarly by the courts.”