CONFIDENTIALITY

Organizations across the world house at least some confidential information. So what's confidential?

Your state statutes might tell you. In Washington State, WUCIOA provides the most definitive list of permissible reasons to hold an executive session AND what material can be considered confidential. The 20 or so states that have adopted a version of the Uniform Common Interest Ownership Act (UCIOA) or Uniform Condominium Act (UCA) have statutory language comparable to what you see below. Except where your state statutes conflict, all communities should consider the principles of the UCIOA as a baseline threshold of best practices. Reinventing the wheel because your statutes lack specificity is just an excuse to eschew transparency with your owners.

It would be incorrect to assume that emails sent among board members are confidential by default due to the recipient list. Emails between board members, a community manager and other vendors are generally not privileged. That stands in contrast to a privileged email between an attorney and a client. It's also important to consider the context of an email with regard to your code of ethics. Even copying your attorney on a communication does not necessarily create attorney/client privilege.

If nothing else, decades of electronic communication have taught us that the Forward button is imminently convenient and that replies sometimes surprise us when additional recipients have been added (or BCC'd without our knowledge). Emails are unlikely to be considered confidential by default unless they include confidential information. While WA State's wiretapping laws prohibit recording conversations without the consent of other parties, there are no blanket prohibitions against sharing the contents of an email with a third party.

Most of the books and records of your community ARE NOT confidential. Many people (for example realtors and potential purchasers) receive detailed information about a community without the need to complete a real property transaction. Are those persons legally barred from sharing that information with the world? No. Certain statues prohibit the use of documents disclosed to members for commercial activity, but many forms of disclosure, including posts on social media, are not commercial in nature. Common interest communities (usually a nonprofit corporations) generally lack authority to hold their directors and members accountable for items that fall outside of their established governance. If there's something gnawing at you, check out Always Ask "WHY?"

There's no reason to be confused about what's confidential or caught off-guard when words you put in writing end up somewhere you may not have intended. Confidentiality and ethics often intertwine. Leading with consistency, empathy, honesty, integrity, reason and transparency (open meetings, access to records, satisfaction surveys, etc.) proactively builds a healthy community.

Associations located in California are subject to additional scrutiny based on the Davis Sterling Act. Read about Davis-Sterling restrictions for email between Board members and also here. You may also enjoy reviewing the limited privacy ruling for ballots from this 2021 decision from Tennessee (Rarity Bay Partners v. Rarity Bay Company No. E2021-00166-COA-R10-CV).

Washington State:

Meetings & Confidential Records

Washington State - RCW 64.90.445(2)(a)(b)(c)(d)(e)(f)(g) - Meetings


(a) Meetings must be open to the unit owners except during executive sessions, but the board may expel or prohibit attendance by any person who, after warning by the chair of the meeting, disrupts the meeting. The board and those committees may hold an executive session only during a regular or special meeting of the board or a committee. A final vote or action may not be taken during an executive session.


(b) An executive session may be held only to:

(i) Consult with the association's attorney concerning legal matters;

(ii) Discuss existing or potential litigation or mediation, arbitration, or administrative proceedings;

(iii) Discuss labor or personnel matters;

(iv) Discuss contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage; or

(v) Prevent public knowledge of the matter to be discussed if the board or committee determines that public knowledge would violate the privacy of any person.


(c) For purposes of this subsection, a gathering of members of the board or committees at which the board or committee members do not conduct association business is not a meeting of the board or committee. Board members and committee members may not use incidental or social gatherings to evade the open meeting requirements of this subsection.


(e) At each board meeting, the board must provide a reasonable opportunity for unit owners to comment regarding matters affecting the common interest community and the association.


(f) Unless the meeting is included in a schedule given to the unit owners or the meeting is called to deal with an emergency, the secretary or other officer specified in the organizational documents must provide notice of each board meeting to each board member and to the unit owners. The notice must be given at least fourteen days before the meeting and must state the time, date, place, and agenda of the meeting.


(g) If any materials are distributed to the board before the meeting, the board must make copies of those materials reasonably available to the unit owners, except that the board need not make available copies of unapproved minutes or materials that are to be considered in executive session.


(i) Unless the organizational documents provide otherwise, the board may meet by participation of all board members by telephonic, video, or other conferencing process if:


(i) The meeting notice states the conferencing process to be used and provides information explaining how unit owners may participate in the conference directly or by meeting at a central location or conference connection; and


(ii) The process provides all unit owners the opportunity to hear or perceive the discussion and to comment as provided in (e) of this subsection.


Washington State - RCW 64.90.495(3) - Confidential Association Records


(3) Records retained by an association may be withheld from inspection and copying to the extent that they concern:

(a) Personnel and medical records relating to specific individuals;

(b) Contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated;

(c) Existing or potential litigation or mediation, arbitration, or administrative proceedings;

(d) Existing or potential matters involving federal, state, or local administrative or other formal proceedings before a governmental tribunal for enforcement of the governing documents;

(e) Legal advice or communications that are otherwise protected by the attorney-client privilege or the attorney work product doctrine, including communications with the managing agent or other agent of the association;

(f) Information the disclosure of which would violate a court order or law;

(g) Records of an executive session of the board;

(h) Individual unit files other than those of the requesting unit owner;

(i) Unlisted telephone number or electronic address of any unit owner or resident;

(j) Security access information provided to the association for emergency purposes; or

(k) Agreements that for good cause prohibit disclosure to the members.

Additional State Requirements:

Meetings & Confidential Records

California Civil Code Civil Code § 4935 - Executive Session Meetings (additional details: Davis-Sterling.com)


(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.

(b) The board shall adjourn to, or meet solely in, executive session to discuss member discipline, if requested by the member who is the subject of the discussion. That member shall be entitled to attend the executive session.

(c) The board shall adjourn to, or meet solely in, executive session to discuss a payment plan pursuant to Section 5665.

(d) The board shall adjourn to, or meet solely in, executive session to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705.

(e) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.


Maryland Homeowners Association Act §11A–128


(a) A meeting of the board of directors may be held in closed session only for the following purposes:

(1) Discussion of matters pertaining to employees and personnel;

(2) Protection of the privacy or reputation of individuals in matters not related to the council of unit owners’ business;

(3) Consultation with legal counsel on legal matters;

(4) Consultation with staff personnel, consultants, attorneys, board members, or other persons in connection with pending or potential litigation or other legal matters;

(5) Investigative proceedings concerning possible or actual criminal misconduct;

(6) Consideration of the terms or conditions of a business transaction in the negotiation stage if the disclosure could adversely affect the economic interests of the council of unit owners;

(7) Complying with a specific constitutional, statutory, or judicially imposed requirement protecting particular proceedings or matters from public

disclosure; or

(8) Discussion of individual owner assessment accounts


(b) If a meeting is held in closed session under subsection (a) of this section:

(1) An action may not be taken and a matter may not be discussed if it is not permitted by subsection (a) of this section; and

(2) A statement of the time, place, and purpose of any closed meeting, the record of the vote of each board member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next meeting of the board of directors


VIEW: Montgomery County Resolution re: Definition of Common Ownership Community Meetings

VIEW: Montgomery County Common Ownership Community Manual & Resource Guide


Texas Property Code Section 209.0051(h) - Open Board Meetings

Except as provided by this subsection, a board may take action outside of a meeting, including voting by electronic or telephonic means, without prior notice to owners under Subsection (e), if each board member is given a reasonable opportunity to express the board member’s opinion to all other board members and to vote. Any action taken without notice to owners under Subsection (e) must be summarized orally, including an explanation of any known actual or estimated expenditures approved at the meeting, and documented in the minutes of the next regular or special board meeting.

The board may not, unless done in an open meeting for which prior notice was given to owners under Subsection (e), consider or vote on:

(1)fines;

(2)damage assessments;

(3)initiation of foreclosure actions;

(4)initiation of enforcement actions, excluding temporary restraining orders or violations involving a threat to health or safety;

(5)increases in assessments;

(6)levying of special assessments;

(7)appeals from a denial of architectural control approval;

(8)a suspension of a right of a particular owner before the owner has an opportunity to attend a board meeting to present the owner’s position, including any defense, on the issue;

(9)lending or borrowing money;

(10)the adoption or amendment of a dedicatory instrument;

(11)the approval of an annual budget or the approval of an amendment of an annual budget that increases the budget by more than 10 percent;

(12)the sale or purchase of real property;

(13)the filling of a vacancy on the board;

(14)the construction of capital improvements other than the repair, replacement, or enhancement of existing capital improvements; or

(15)the election of an officer