What is confidential information?

When it comes to individual owners, I would say "confidential information" is anything that could result in an invasion of privacy lawsuit or a defamation lawsuit, though with some balancing against owners' rights to know they are not being treated selectively. Examples:

Not Confidential
All architectural applications and the rulings on the applications should be available, preferably on a database accessible to all owners. Do not use names. Use lot numbers.

All architectural violation notices.

Confidential
-- Violation hearings, including what was said.

-- Non-architectural violation notices. These are allegations. They can be the stuff of a claim of defamation. On the other hand, I think Florida statutes may require these to be available to owners. Some argue that transparency here is better than otherwise. At the moment, I do not agree.

-- Assessment delinquency notices. Some here say this should be public information and 'public shaming' is not such a bad thing, because we are talking about owners' money. But it's too easy for a board or manager to mess up and send out a notice when no such notice should have been sent. When the latter happens, this starts crossing over into defamation territory.

Thanks. What jump out at me are the potential lawsuits: privacy lawsuits and defamation lawsuits. If a board were to draft something, I think those would be important areas to explore.

I define confidential / non-confidential similar to the above, but a little different.

After being on the board for a few years, I have come to the conclusion that anything that is observable from the street is non-confidential. There is nothing wrong, in my opinion, about discussion how the property address at xyz maple street has a lawn that is a foot tall, or that pdq maple street has plants growing out of the gutters. These are simple statements of fact that everybody would know.

Confidential information in my opinion are things that are not knowledgable to the general public. Being behind in dues, the violation for having an overgrown lawn, the violation for having plants growing out of gutters, etc. These are confidential things that should not be shared during open session.

Here are two articles on confidential information - the first can give you a start on what type of information could be considered confidential - https://www.skillsyouneed.com/lead/workplace-confidentiality.html

The second addresses HOAs and confidential information: https://www.hopb.co/blog/privacy-rights-confidentiality-and-data-security-for-homeowners-associations-hoa-condominiums#:~:text=HOA's%20Duty%20to%20Protect,to%20protect%20members'%20confidential%20information.

Of course, you know various states have their own rules regarding privacy, so there is no one size fits all guideline as to what any HOA should do - focus on what's appropriate in YOUR state. You should also be aware that what information is and isn't considered confidential will depend on the situation, so start by considering what type of information you have and how it's used. What might an unrelated homeowner do with it? Is this information REALLY another homeowner's business? More importantly, what happens if the information is misused or abused, such as someone getting details on a lawsuit for delinquent assessments and starts some sort of smear campaign?

Michael, you may not define "confidential"; your bylaws and /or state stature do.

In most states owner discipline, e.g., being called to a hearing for a violation of the documents in done in executive session. Then, at the open meeting in their executive session disclosure (required in CA), the presider could announce that the Board levied a $100 fine for excessive noise, gave an Owner 30 days to clear their yard of rubbish and weeds or the assn. will do it an charge the owners an enforcement assessment, etc.

In our assn. architectural guidelines violations would be treated like any other covenant or rule violation: In executive session as an example of owner discipline.

In CA, owners may review the required Arch. committee meeting minutes because the ARC has decision-making authority. I'd need to look it up, but I do not think ARC requests are available to Owners. Perhaps because we're condos, I'd say it's no one's business if I relocate the plumbing in a bathroom, add new wiring for lighting, etc. The ARC approves this and City permits may be involved.

Other matters typically in Executive Session are personnel matters; contracts in formation; owners' requests for payment plans; agreement to file a lien tho' the actual vote to do so is in an open meeting referring to the lot #.

Releasing owners' names who're found to be in violation is required in some states' associations, Ben? Do you know off hand which ones?

In Texas, under the Property Owners Protection Act (Chapter 209), all association records are open to members with a few specific exceptions. One of those exceptions is the "violation history of an individual owner." There is no general exception for releasing owners' names in relation to violations (only financial records). I interpret that to mean that an owner cannot get the violation history of an individual owner but could request general records of violations which would include identifying information, e.g., they could request all of the Architectural Control Committee records for the year 2021.

I am sure some here will disagree so here are some examples that support this: Complaints to the ACC and ACC records in general are not excepted and enforcement actions are not excepted. Also, appeals are held in open board meetings under the code.

In Florida almost all HOA information is public except private information on sale or lease approvals (SS numbers, credit card numbers, driver's license numbers) and a very few other things. In order to do the agenda that gets published for our ARC applications we list the street address and not the name, however it's easy to find the owner because our county property records are all online and public. For violations and fining we also list the address of the property but not the name. Fining is discussed at open board meetings since we are not allowed to have executive sessions except for legal or personnel matters. Owner has the right to be heard at the board meeting regarding their fine. Last meeting someone up for fining also had their large outstanding balance discussed at the open board meeting. Any homeowner could have asked for that information anyway since it's an open record. We generally don't discuss outstanding balances at meetings because it's more sensitive, but in this was a special case since the guy wanted out of a violation but hadn't paid dues in 2.5 years.

David,

I did not see a single response that quotes Delaware Title 25, Chapter 81 (The Delaware Uniform Common Interest Ownership Act): https://delcode.delaware.gov/title25/c081/index.html. Below are two excerpts. There's a whole page about what's confidential here: https://www.(LINK-NOT-ALLOWED-PER-POSTING-RULES)/governance/confidentiality. That reference will surely be to the dismay of some participants of this thread, but I've included it because there's a lot of context and additional information that far exceeds what's reasonable to post here.

§ 81-308A. Executive board meeting.
c) After the period of declarant control ends, all meetings of the executive board shall be open to the unit owners except for executive sessions held for purposes of:
(i) consulting with the association’s lawyer regarding, or board discussion of, litigation, mediation, arbitration or administrative proceedings or any contract matters;
(ii) labor or personnel matters;
(iii) discuss matters relating to contract negotiations, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage; or
(iv) discussion of any complaint from or alleged violation by a unit owner, when the executive board determines that public knowledge would violate the privacy of the unit owner.

§ 81-318. Association records.
(c) Records kept by an association may be withheld from inspection and copying to the extent that they concern:
(1) Personnel matters relating to specific persons or a person’s medical records;
(2) Contracts, leases, and other commercial transactions to purchase or provide goods or services, currently in or under negotiation;
(3) Pending or threatened litigation, arbitration, mediation or other administrative proceedings;
(4) Matters involving federal, state or local administrative or other formal proceedings before a government tribunal for enforcement of the declaration, bylaws or rules;
(5) Communications with legal counsel which are otherwise protected by the attorney-client privilege or the attorney work product doctrine;
(6) Disclosure of information in violation of law;
(7) Meeting minutes or other confidential records of an executive session of the executive board; or
(8) Individual unit owner files other than those of the requesting owner.
(d) An attorney’s files and records relating to the association are not records of the association and are not subject to inspection by owners or production in a legal proceeding for examination by owners.

Regards,
Steve

Dean,

I'm not sure where you're getting your information, but the names of your homeowners, their mailing address, violation notices, penalties related to violations, and alteration and improvement requests are all non-confidential records of the CIC that are generally subject to a member's reasonable disclosure request.

Electronic messaging addresses, electronic correspondence (such as email and text messages) and homeowner's phone numbers may be confidential in certain states, but not in others. Email may not even be considered a record of your CIC in some circumstances. The content of correspondence, not the method used to correspond, makes all the difference as to whether certain correspondence is considered a record.

https://codes.ohio.gov/ohio-revised-code/title-53 and https://codes.ohio.gov/ohio-revised-code/chapter-5312

Section 5311.09 | Unit owners association records.

Effective:July 20, 2004Latest Legislation:House Bill 135 - 125th General AssemblyPDFownload Authenticated PDF
(A)(1) The unit owners association shall keep all of the following:
(a) Correct and complete books and records of account that specify the receipts and expenditures relating to the common elements and other common receipts and expenses;
(b) Records showing the allocation, distribution, and collection of the common profits, losses, and expenses among and from the unit owners;
(c) Minutes of the meetings of the association and the board of directors;
(d) Records of the names and addresses of the unit owners and their respective undivided interests in the common elements.
(2) Within thirty days after a unit owner obtains a condominium ownership interest, the unit owner shall provide the following information in writing to the unit owners association through the board of directors:
(a) The home address, home and business mailing addresses, and the home and business telephone numbers of the unit owner and all occupants of the unit;
(b) The name, business address, and business telephone number of any person who manages the owner's unit as an agent of that owner.
(3) Within thirty days after a change in any information that division (A)(2) of this section requires, a unit owner shall notify the association, through the board of directors, in writing of the change. When the board of directors requests, a unit owner shall verify or update the information.
(B)(1) When elected members of a board of directors of a unit owners association take control of the association, the declarant or developer shall deliver to the board correct and complete copies of all of the following:
(a) The books, records, and minutes referred to in division (A) of this section;
(b) The declaration, the bylaws, the drawings prepared pursuant to section 5311.07 of the Revised Code, as recorded, and any articles of incorporation of the unit owners association, as recorded;
(c) Except in the case of a conversion condominium, documents, information, and sources of information concerning the location of underground utility lines, and plans and specifications that are not proprietary or copyrighted, of the buildings, other improvements, and structures of the condominium property that are reasonably available to the developer, but only in connection with condominium developments declared on or after the effective date of this amendment and condominium developments that are declared prior to that date but originally built or constructed on or after that date.
(2) The board of directors may commence a civil action on behalf of the unit owners association in the court of common pleas of the county in which the condominium property is located to obtain injunctive relief or recover damages for harm resulting from the declarant's or developer's failure to comply with division (B)(1) of this section.

Section 5311.091 | Examination of books, records, minutes.

(A) Except as otherwise prohibited by this section, any member of a unit owners association may examine and copy the books, records, and minutes described in division (A) of section 5311.09 of the Revised Code pursuant to reasonable standards set forth in the declaration, bylaws, or rules the board promulgates, which may include, but are not limited to, standards governing the type of documents that are subject to examination and copying, the times and locations at which those documents may be examined or copied, and the specification of a reasonable fee for copying the documents.
(B) The unit owners association is not required to permit the examination and copying of any of the following from books, records, and minutes:
(1) Information that pertains to condominium property-related personnel matters;
(2) Communications with legal counsel or attorney work product pertaining to pending litigation or other condominium property-related matters;
(3) Information that pertains to contracts or transactions currently under negotiation, or information that is contained in a contract or other agreement containing confidentiality requirements and that is subject to those requirements;
(4) Information that relates to the enforcement of the declaration, bylaws, or rules of the unit owners association against unit owners;
(5) Information the disclosure of which is prohibited by state or federal law.

Regards,
Steve

I would not say "generally." You yourself quoted the Ohio statute section that says HOA enforcement info, against other owners, is in fact not information to which Ohio condominium owners may have access. The same turns out to be true for Ohio HOA owners.

Unless a statute one way or another orders the sharing of HOA/COA enforcement actions when an owner requests inspection of same, I believe sharing a HOA/COA's records on enforcement holds the HOA/COA out to much vulnerability when it comes to threats based in alleged defamation and invasion of privacy.

1.5 cents towards what I believe is best practices (where statutes are silent)

?

UCIOA 2021 says "records retained by an association may be withheld from inspection and copying to the extent that they concern: ...

(7) records of an executive session of the executive board; or
(8) individual unit files other than those of the requesting owner.

UCIOA 2021 has some other records that may be withheld because they relate to owners' violations.

If you think UCIOA represents a reasonable standard and/or best practices, then records of enforcement actions should not be available to owners.

I think the number of states that have adopted UCIOA is well less than 20.

Yup, I am happy to agree to disagree.

SteveH35,

?

UCIOA says the exact opposite of what you appear to claim UCIOA says. You call this nitpicking. I call it correction of a substantive mistake, said correction going directly to getting the best response to the OP's question.

Bottom line from me: If a state's statutes are silent about records pertaining to enforcement actions, then I recommend that a HOA/COA not share these records with other owners.

Which brings us to the fact that statute sections on what records must, or must not, per the statute, be made available to owners is not the same as what should not be released to owners.

Privacy law; defamation law; and likely other law come into play when deciding what should be released and so what is "confidential."

I am a proponent of transparency. Too often I see boards drag their feet on providing records to which owners absolutely are supposed to have access. But there are real limits to what owners may see, and for good reason.