Many owners believe that as members of a community association, they are entitled to inspect association records at will and at any time. An owner’s request to see the association records may happen for any number of reasons, such as when an owner feels that assessments are too high and sets out on a quest to rid the budget of all the “useless” expenditures.
Of course, association boards should strive to be as transparent as possible. It is never a good idea for a board to appear secretive. In fact, Oregon law requires the association to make certain records available for owners. At the same time, Oregon law also restricts the availability of certain documents and communications. Because of these requirements, the board must have a clear understanding of what is an “association document.” Often, a well-drafted records resolution can clear up this issue and avoid costly litigation while keeping certain sensitive records safe.
Oregon law requires homeowners associations to retain “documents, information and records” of the association and that those records be made available to owners who make a request in good faith for a proper purpose. The Planned Community Act (PCA) and Oregon Condominium Act (OCA) both require the association to retain certain documents, such as documents it receives at turnover from the developer, financial records, and owner lists. Unfortunately, however, the Oregon law does not provide any further guidance on how the terms documents, information, or records are defined. Also, the association’s declaration and bylaws may not have specific definitions on these terms.
Without a resolution, owners can make—and have made—the argument that emails contained in board members’ personal email accounts constitutes “records of the association” if the subject matter of the email deals with association business. This is especially true in the case where the association does not have its own dedicated email address. The same argument could be made with board members’ voicemail accounts or text messages. This becomes a serious problem when someone other than the board member has to sift through the board member’s personal communications to determine which communications are related to association business.
In order to avoid this situation altogether, boards can do two things. First, open an email account using the association’s name, such as “email@example.com”. The board can copy this email address on certain board communications that may be available to owners. Communications with third parties should go through the association’s email. Second, adopt a resolution specifying that any emails, text messages, voicemails, or other electronic communications that are the private property of any board member are NOT association documents or records. The resolution also establishes a policy establishing the frequency, time, location, notice and manner of examination and duplication of association records.
Boards should also be aware that even with a dedicated email address and records resolution in place, certain communications and records are exempted from examination by owners. These records include confidential information such as owners’ social security numbers, communications with attorneys, contracts currently in negotiations to purchase goods or services, or documents the disclosure of which would be a violation of law. See ORS 94.670(9); ORS 100.480(9).
As a practical matter, most owners will likely not request inspections if they feel that they are being kept in the know through mailings, newsletters, or an association website containing the governing documents, resolutions, house rules, board minutes, and financial records of the association.