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.
Copying your attorney on an electronic (typically email) communication does not necessarily create attorney/client privilege.
Having your attorney attend a meeting (especially an open meeting) should likewise not be assumed to create privilege.
In dismissing In Re Grand Jury as improvidently granted, the US Supreme Court solidified that the "primary purpose" test is the gold standard to establish privileged communication. Supreme Court Evaluates Scope of Attorney-Client Privilege – Adam Liptak | WSJ | 01/09/23
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?"
Having independent directors who think for themselves and apply their skills, knowledge and experience to benefit your community should result in differences of opinion. Omnipotence and unreasonableness often like to hide in the shadows and don't come out in the light of open discussion in front of homeowners who are not directors. That's just one reason that open meetings are a best practice. Are you willing to speak to the unvarnished truth in an open meeting? Why not?
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: Confidential Records
View Washington State open meeting requirements.
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.
Texas Executive Session Topics
Texas Property Code Section 209.0051(c) - Open Board Meetings
(c) Regular and special board meetings must be open to owners, subject to the right of the board to adjourn a board meeting and reconvene in closed executive session to consider actions involving:
pending or threatened litigation,
confidential communications with the property owners' association's attorney,
matters involving the invasion of privacy of individual owners,
or matters that are to remain confidential by request of the affected parties and agreement of the board.
Following an executive session, any decision made in the executive session must be summarized orally and placed in the minutes, in general terms, without breaching the privacy of individual owners, violating any privilege, or disclosing information that was to remain confidential at the request of the affected parties. The oral summary must include a general explanation of expenditures approved in executive session... [view full text]