CONFIDENTIALITY

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When discussing confidentiality, the definition is essential. It would be incorrect to assume that emails sent among board members are confidential by default due to the recipient list. Square up that assumption with any common code of ethics and you'll find that "context matters." Emails amongst board members and their community manager are generally not privileged which stands in contrast to a privileged email between an attorney and a client.

Many of us have learned over the last 30 years of email that the Forward button is imminently convenient and that replies sometimes surprise us when additional recipients have been added. 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.

What's actually confidential? WA State's WUCIOA statute defines the essence of confidential material in RCW 64.90.445(2)(b)(I - V)

(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.


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. Since confidentiality and ethics often intertwine, please visit our ethics page as well.

Associations located in California are subject to additional scrutiny discussed in this article about email and meetings and also here.

Contextually similar to RCW 64.90.445 above, RCW 64.90.495(2)(3)(4)(5)(6) elucidates how an owner


(2) Subject to subsections (3) and (4) of this section, all records required to be retained by an association must be made available for examination and copying by all unit owners, holders of mortgages on the units, and their respective authorized agents as follows, unless agreed otherwise:

(a) During reasonable business hours or at a mutually convenient time and location; and

(b) At the offices of the association or its managing agent.

(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.

(4) An association may charge a reasonable fee for producing and providing copies of any records under this section and for supervising the unit owner's inspection.

(5) A right to copy records under this section includes the right to receive copies by photocopying or other means, including through an electronic transmission if available upon request by the unit owner.

(6) An association is not obligated to compile or synthesize information.