Proprietary Information

Looking for your experiences....

Our HOA publishes a directory of residents that contains names, addresses, phone numbers and email addresses. The secretary of the board emails updated directories and posts them to a limited-access website.

Today, we got the following email from management:
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Subject: Invasion of Privacy

From your Property Manager

The XYZ Homeowner Directory contains private confidential information.

It’s been brought to our attention by many residents that this proprietary information is being used for campaigning purposes.

This is not the purpose of this document and many residents have expressed their displeasure in receiving calls for the purpose of securing votes.

We request refraining from use of this list for political purposes or for any level of solicitation as this is an invasion of privacy.

Thank You!
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In NJ, a recent Supreme Court decision ruled that a board could not ban campaigning.

My question is, has this occurred in your community?

If so, was there a legal ruling made as to whether or not that information is indeed proprietary or not, and whether or not making phone calls is an invasion of privacy.

Thank you.

First, let me tell you that our original MC did collect this type of information and did put it on a website at one time. However, they removed the information a few years ago. Our new MC has a master list of accounts but we do not display it or allow it to be distributed in anyway. However, I do believe a homeowner can contact the MC and obtain a list of home addresses in our association. It is just the house numbers (which is pretty easy to figure out anyways) but does not come with names. If they are given such home list, they are instructed not to use it for any type of solicitation.

With that said, we did have a homeowner that tried to shame the board for taking some action against her and her husband (he was on the board with me). She put out flyers with our personal phone numbers and email addresses for homeowners to contact us to voice their displeasure in the action we had taken. In addition, she also had a public media release sent out to all the local media (TV, newspaper, radio) outlets with the same personal information. Her husband obviously had access to our information since he was on the board with us and he got it from her.

I would never want my personal information displayed on a website, even it was restricted to other homeowners. Nor do I want access to other homeowner's personal information. Though I do have to say a lot of information is already a matter of public record. I know anyone can access our country tax records (online) and get the homeowner's information (and how much property tax was paid).

Jerry,

Wouldn't that be in violation of statute?

Names and mailing address (vs. property address) of members would normally be required to be released when requested by a member.

In our case, it's too late for that. Our board has been distributing the directory foe 15 years.

I don't know if they were given a choice or not.

So I think you are agreeing with our property manager, yes?

People! We're getting off-topic.

Please don't post what should have been done and how to get the information in the case where there's no directory. Doesn't help.

The directory has been in existence for 15 years. I haven't heard of any complaints until this one.

My question is, is the manager's point legally valid? Is phoning a resident an invasion of privacy?

My bad! The title of this should not have been "proprietary information" because that is a synonym for "trade secret" and doesn't apply here. It should have been "Private Confidential Information".

I submit that any information that is easily found on the Internet (address, phone, email) is neither private not confidential.

They have an Excel file. Every month, management
removes people who have moved out and adds people who have moved in. We have about 425 homes so the turnover isn't great. I'd say that 30 minutes per month is all that's needed.

Edward,

Just going on tangents, not really going off topic.

As for the specific issue, in my opinion, it boils down to did the Association have permission from the owner to publish the contact information in a directory or not.

If they did - then there is no issue.

If they did not - then, yes, there is an issue as private information was released without consent and without a direct request for such information. Once published, the Association has zero control over how it is used.

It's not about how the information is being used. As I said, the Association has no control over that.

The issue is, did the Association have the owners permission to publish and if not, did the Association have the authority to publish without a specific request for the info?

Because our privacy laws were written before the internet - and like every other area where technology gallops ahead, the need for answers hits the marketplace long before it hits the courts and legislatures.

Edward

In our association we will typically have two lists. One is a membership list, managed by the software of the management company, which is available to anyone who properly requests it. That list contains only the names and mailing addresses, or secondary address (if requested) of the homeowners. Once a year, an opt-out form is provided, as mandated by our Civil Codes. Any address of an opt-out homeowner is removed from availability until they opt back in. There are no phone numbers or email addresses provided, but there is now U.S. Case Law that could change that in the further. This would be the information that the homeowners would use to campaign with, no business soliciting.

The other source could be from a HOA controlled website. The homeowner has an opportunity to share their information with other homeowners, or they can check a box that keeps the information private. If the information is on the website, and they have consented, in view of the homeowners (private side and secured), it is considered fair game. The homeowner has consented to making their information available to anyone who has access to the private side of the HOA website.

What case law is that?

As I said, I have no idea whether or not our owners have given consent to be included in our resident directory. Incidentally, our website contains only a downloadable PDF of the directory.

Case law is Worldmark, the Club v. Wyndham Resort Development Corp.

Anyone with current or prior access could have copied and saved the homeowners contact information... and now has that information for campaigning, solicitations, etc. Personally, I don't think it should be the business of any hoa to publish or distribute names of homeowners and their contact information to their membership. The only party that truly needs that info is the property manager.

Campaigning or politicking is seeking votes. Public policy strongly endorses citizens discussing matters that effect their lives and voting for the candidates of their choice.

Soliciting is selling stuff, like Girl Scout Cookies or encyclopedias.

Proselytizing is an activity that, like campaigning or soliciting, often involves knocking on doors to convert or attempt to convert (someone) from one religion, belief, or opinion to another. While many of us find it annoying, public policy seems to grudgingly support it under the banner of freedom of religion.

"Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."
New York Times Co. V. Sullivan, 376 U.S. 254, 270 (1964)

To sort of answer your question . . . this occurred in my community, but no legal issues/rulings were created, so I can only provide my opinions in that regard. In my community, we established protocol over how the info may be used and then provided friendly reminders when protocol wasn't followed. However as others have said . . . once the info is out there, there is no way to really control how it is used.

If there are real concerns, simply stop publishing the directory. After all, if the information contained cannot be used by the people it is provided to, then there is really no need for it.

The information you're talking about is better defined as "personal info" and is not really "private", "proprietary", and/or "confidential". There are differences in definitions that are important (you can look them up). Except for some cell phone numbers and home phone numbers that people intentionally conceal from public distribution, everything contained in your directory is openly, legally, and widely accessible on the internet and in public records.

I think you'd be hard pressed to have anyone agree that a solicitation-type phone call was an "invasion of privacy" (if that's the case, my privacy is invaded daily by telemarketers, bill collectors, and politicians). However, if the calls occur routinely even after a request is made that they do not continue, then you may have a case.

A "legal" definition I found online . . . "Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. It encompasses workplace monitoring, Internet privacy, data collection, and other means of disseminating private information."

Roger

I second your recommendation of considering professional management.

But that is advice for our board! :-) And since the directory is out there already....

Well, they made a claim that this was an invasion of privacy but did not claim it was violating any NJ laws.We have professional management. :-)

The court's conclusion was consistent with my earlier post. "Email" was not in common use at the time that the language in question in the Worldmark v. Wyndham case was adopted. That court was of the opinion that if "email" existed at the time, the drafters would have included email as a component of the term "mail".

The opinion is by a federal court in CA. Which means that a NJ state court does not have to apply it. It also means that a federal court in NJ does not have to apply it.

The case may turn out to be very influential if a similar case is brought before the state or federal courts in NJ. But then again, different docs may result in different decisions in different courts.

We go to great lengths to keep our email list accurate and current.

We send email blasts often - which involves blind copying the entire membership (who want to receive emails). Every once in a while an error is made and the members wind up being copied instead of blind copied. When we copy instead of blind copy, the entire email list gets published in error. It doesn't happen often, but it does happen from time to time.

About a year ago, one HO who had a dispute with her next door neighbor and the HOA decided to broadcast a plea for help.

The email list she used was outdated. Which means that HOs who had asked us to remove them from these distributions were now getting HOA emails that they didn't want. Quite a few of these HOs were offended that their wishes to be left alone had not been respected.

We also saw that she had intentionally removed some people from her distribution list - in particular, the neighbor she had a dispute with and people who she knew were his friends. This too was a violation because we do not allow selective use of our list.

In response to her email blast, a lawyer who lives in the community sent a typical lawyerly response and offered to help her. But he didn't send it to just her. He broadcast it to the same list. But to us, that was soliciting - We would have had no problem if he just responded to her privately, but by sending it to the entire community, he was using our list to advertise his services.

This story continued with many twists and turns - But the point I wanted to make is that the use of private information is an incredibly sensitive issue - once you open the door to misuse, there can be a domino effect of bad feelings created and finger pointing.

Larry

Being this was a published case, it can be used in other states. BTW, I think the case is without merit, as it involves timeshares, but I also can't believe how some issues are linked to certain court cases that make no sense at all.