Can Owners inspect Reports that Fulfill a contract?

I would simply try asking first (unless you did and were told no).

Personally, I would think that such a report would be attached to minutes of the meeting it was presented/discussed.

Or simply perceived as one.

I think Davis-Stirling is on the side of prohibiting such a report from being shared with members. From https://www.davis-stirling.com/HOME/Records-Not-Subject-to-Inspection :

"The following records are not subject to inspection by members (see Civ. Code §4935) and Civ. Code §5215):
...

correspondence between members, vendors or others with the board...
... "

It seems like the report may be an Executive Session item, since it could relate "to the formation of contracts with third parties" (California Civ. Code 4935)

If you are denied the report, you might use this section of Davis-Stirling, from https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5215#axzz2CR2ljirY :

"(d) If requested by the requesting member, an association that denies or redacts records shall provide a written explanation specifying the legal basis for withholding or redacting the requested records."

Where I am, the Board and manager considers any member making any records request, as allowed by the governing documents and statute, to be a nuisance and deserving of the board's and manager's explicit and public ridicule. If you want a record where I am, plan on waiting over a month. When the manager finally has the record, you then must sign a "records release" form that threatens you with legal action if you do any of several things with the record, written in legalese intended to intimidate.

Richard,

From Civil Code §4935. Executive Session Meetings:
"(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665. [Old: Civ. Code §1363.05(b)]"

From Civil Code §5215. Redacting Information:
"(a) Except as provided in subdivision (b), the association may withhold or redact information from the association records if any of the following are true:
...
(5) The information contains any of the following:
...
(D) Minutes and other information from executive sessions of the board as described in Article 2 (commencing with Section 4900) [see Section 4935 in this post to hoatalk.com], except for executed contracts not otherwise privileged. Privileged contracts shall not include contracts for maintenance, management, or legal services."

It seems reasonable to me to surmise that this report may relate to the 'formation of a contract with a third party.' Thus the Board may discuss it in an Executive Session. Subsequently the Minutes of said Executive Session may be withheld from Members.

The attorneys of the Davis-Stirling commercial site put 'reports' under 'correspondence between vendors and the board.' In terms of what the statute actually says, this seems reasonable.

If you want to argue that the report exists independent of the Exec Session, then that's your prerogative. As I wrote, I think Davis-Stirling here is on the side of not making the report available to members. It makes sense to me, because I do not want every Tom, Dick and Harry vendor learning from a member the details of a report attesting that the swimming pool liner has underground leaks and will have to be replaced soon. I do not like that the report, to me, may legally be withheld from a member. But I can understand the reasoning.

I reviewed the statutes again. The project management contract to oversee painting our exteriors was signed months ago while I still was on the board. A second part of the proj. mgmt. contract was the firm would write a final report certifying that the painting was complete and done to according to the terms of the painting contract. It's this report that I want to review. It should, then, not contain any negative information as in Augie's example.

Oh, but what if it does??? Hmmm, now that could lead, say, to some sort of legal action against the paint. And THAT would be privileged, right? (I've never been involved in any kind of legal action, so don't know what I'm talking about)

So...it's not a "contract in formation," which can be kept confidential; it's already been completely executed. Luckily, as Augie shows us, if need be I can rely on Civ. 5215 "(d) If requested by the requesting member, an association that denies or redacts records shall provide a written explanation specifying the legal basis for withholding or redacting the requested records." So even if a phone call to our HOA attorney results in some reason for turning down my request, I'd need to see it in writing.

Also per CA statute, the PM should have this to me within 10 days of my request. I also see that I may resort to small claims court if the PM denies my request without good reason.

I appreciate both replies as they help me think about this topic. Another evaluation report that I HAVE reviewed plenty of times relates to a contract still in formation. I'd like it to be shared with owners, but I think it still may be defined as "confidential." But, what about this?? A few months ago, the president cherry-picked direct quotes from this evaluation for her monthly Message in our newsletter. As a director at the time, I know that the Board did not vote to approve her revealing any of this report. I think she was way off base. What do you think?

I'm now inclined to think the PM will not send me the final report from the project mgr. unless it's fairly innocuous. I do understand why. I also requested a copy of the invoice showing our HOA paid this proj. mgr. the $3,500 for their final report. This at least will show me that the proj. mgr. did something to earn it.

Say, Augie, it wasn't "the board" who released a few details from a confidential evaluation that relates to a contract in formation. It only was the president with NO vote by the board to release ANY of that evaluation report. Even withIN that report, there are statements that clarify her selected quotes in a way that are at odds with with what she wrote.

The Board's increasing secrecy about many matters is another reason I didn't seek reelection.

People are confusing contract formations and the product that comes from them.

For instance, you could bid out to have the annual taxes and annual review/audit preformed. That could be handled in executive session. The annual review report the vendor produces though has to be sent to all homeowners within 120 days after the end of the fiscal year.

In Kerry's situation, I have to assume the product that was called for was not confidential and therefore should be available upon request.

I've been doing this for ten years. I might have gotten three requests for a report produced outside of the annual review and that would cover over 125 HOA's in that period.

I have a legal opinion on this topic, do you?

Augustin

The formation of a contract can be held executive session and the minutes from that meeting are not available to the homeowners. BUT, once the winning contract has been signed, it is available to the homeowner for inspection. IF, in the case of Kerry, someone could have a attorney give a legal opinion to withhold the report for no good reason. Hell, attorneys will do anything for money. For a report you are willing to be withheld needs to be deemed confidential right from the outset.

Kerry would not need to provide a citation. You would argue whether the report was confidential, from the beginning.

You cited an opinion from the person who handles the davis-stirling.com website. as you know two lawyers can't agree on the same thing. I know a number of lawyers who work at that firm, past and present, and they have different opinion on a wide variety of topics. If a lawyer and a PM had to go into Small Claims who would have a better chance. Now what if a PM and a homeowner went into the same court, who has the better chance. Trust me, it not always what you know in court that makes a case.

My CMCA and AMS mean nothing. Neither does my tax preparer's license, it is the continual education year after year. I attend two legal conferences every year. I also have a number of acquaintances in the HOA legal field which help a lot. I don't come to post on every topic just so I can get my free toaster, I have one already. I post on topics where I have some experience and expertise. This being one of them.

Richard, we agree that "executed contracts not otherwise privileged under law" may be reviewed by members, pursuant to Civil Code 5200. But the the report is not a contract. For one thing, it was prepared after the contract was signed.

Is this really the ground on which your position rests? Namely, that the report is either a part of the contract or is "the contract" itself? If so, we majorly disagree.

I am not sure why you ask what my layperson's legal opinion is. I would think one could tell what it is from my prior posts. My layperson's legal opinion is that, until someone cites a statute saying otherwise, the HOA Board appears to be within its legal rights to withhold this report from members.

Unfortunately, what I get out of all this, is the homeowner asking for such a report must be a troublemaker and they would have to prove that they are entitled to such a report, that, ultimately, they paid for. Did I miss anything?

From what I got on the thread, most believe the report should be made available.

The OP's question was, "do I have the right to inspect the reports that grew out of the contracts" The California statute on this is permissive and not mandatory. That is, the board may share such reports with members, but by my reading, it has the legal right not to. As I wrote above, I do not like the withholding of such reports. I agree that people pay money into their HOA and do have legal ownership rights to certain records and to know the condition of the finances and infrastructure. But depending on the circumstances, and if I were a director, I might vote either to withhold certain reports from members or to redact them heavily. Circumstances meaning the release of such a report might be cause for legal action by, say, a vendor who is criticized in the report. In denying any such report to a member, I would hope that somehow, word would get out that the Board has to be mindful of defaming vendors, members et cetera. Hence the board has to exercise judgment when it comes to records requests.

IF everything has to be clear cut for everyone, we are in a world of hurt. Actually wouldn't need board members, we could just get robots to nod their shiny tin heads.

First, Richard, Your remark that boards that comply with statutes, governing documents and board policies & resolutions are shiny robots is snarky.

2nd, If I were on the board, and if such a request come to the board, and if said report said nothing potentially defamatory or raised questions about the quality of the painters' work in it, I would encourage the board to approve releasing it to the owner.

There are many contracts where it's easy for any interested owner to actually see the results. On high rises, the quality of the painting work and the condition of the building caulking on our curtain wall system cannot be seen completely from units or the ground and must be examined from a swing stage or basket by knowledgeable experts.

Kerry

I don't think you really understood what Augie was saying. He said that you shouldn't get the report because it is part of a contract done in executive and you wouldn't be able to provide any citation that proves you are entitled to such a highly sensible report.3

I call BS.

I am out of here. Happy New Year!

With Augie, I agree that there's nothing in CA statutes that I can see that gives owners the right to examines such reports. Is still a director, I personally would follow my fiduciary duty of loyalty to the corporation, i.e., my HOA by withholding any verbiage that might put my HOA at risk if revealed.

If such language is in the report, I'd also urge the board to vote to seek compensation from the painting vendor --potential litigation-- or cure--a contract specifying what must be repaired. Both of those topics may be discussed in executive session if the board chooses.

IF the report is "clean," I'd vote to release it to the owner.

Keep in mind that for the 12 years I was on the board no such requests were made and it was very rare to have that type of contract in the first place in my HOA. Also keep in mind, I not only want a sense of the condition of our building caulking, I want to know if this report was completed at all, which I can learn from the invoice, which may not be withheld from me. It the report has not be done, I'll urge the PM to get it handled so that I don't have to write an agenda item for the board.

I'll let everyone know how this turns out. I do appreciate both Richard & Augie's arguments. I far prefer Augie's tone.