HOA Legi-Slate

We often hear stories of well-meaning association boards that make the decision to withhold due to "privacy concerns" certain association records from an owner requesting them. The decisions to withhold certain association records are explained along the lines that it would be an invasion of privacy:

• to release the names and addresses of other association members;
• to provide a list of owners delinquent in their assessments;
• to let an owner inspect covenant complaints filed by or against other owners, etc.

However, none of the above reasons are valid ones for refusing an owner request to inspect and copy such association records.

As members of a nonprofit corporation (i.e. the association), owners have a broad right to inspect and copy association records under state law. Although this right to inspect and copy is quite broad, an association may withhold association records if the requesting owner does not meet the requirements set out by law to access these records or if the records requested are protected from disclosure for valid confidentiality reasons.

What Qualifies As An Association Record?

Association records are any documents related to the governing and operating of the association, such as an association's financial records, legal documents, governing documents, correspondence, and business documents. Among the records that Section 317 of the Colorado Common Interest Ownership Act (CCIOA) specifies associations keep at its principal office include: a list of the names and business addresses of the current directors, all minutes of board and owner meetings, a record of all waivers of meeting notices of owners, board members, and committee members, and all written communications within the past three years to owners generally as owners.

This section, however, does not have an all-inclusive list of what qualifies as an association record. For example, associations are advised to keep copies of written correspondence between the association and venders, vendor invoices, proxies and ballots, payroll records, cancelled checks, etc. [Click here for a list of records associations are advised to keep and for how long.]

Owners' Right to Inspect and Copy Association Records

Section 317 specifically provides that owners have the right to copy and inspect association records if:

• The inspection is made in good faith and for a proper purpose;
• The request describes in reasonable detail the records wanted and the purpose of the request; and
• The records are relevant to the purpose of the request.

In addition to the above, the statute provides a more thorough definition of "proper purpose" for obtaining membership lists, which arguably may cause the most privacy concerns. Membership lists (that is, a list of the names and addresses of owners) may not be obtained without the consent of the board for reasons unrelated to an owner's interest as an owner. The statute gives the following (non-inclusive) examples of prohibited uses: 1) using the membership list to solicit money or property; 2) using the membership list for any commercial purpose; or 3) selling or purchasing the list.

What Records Are Confidential?

Some records do have a special "privileged" status due to the need for privacy, which exempts them from owner inspection and copying. Examples of such records include attorney-client communications (such as letters from or to the association's legal counsel), medical records, and credit history reports. In addition, an association could decide that member's email addresses or telephone numbers will be considered "private" information. (But remember, owners - as members of the association - do have the right to know who the other members are and how they earned their membership, i.e. what property they own in the common interest community.)

To protect the private nature of these records and avoid any conflicts, associations should consider adopting a "confidentiality policy," describing in detail what records will be considered confidential and unavailable for inspection.