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 material that can be considered confidential. Review the information below and also see our Records & Retention and Disclosure pages. 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.

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.

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 information that may be "proprietary" to your organization.  Are those persons legally barred from sharing it with the world?  Probably not.  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. View our Ethics page.

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).

RCW 64.90.445(2)(b)(I - V) - Meetings


(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.


Alternate Reference: 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

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.