Disclosure of information and Right to Privacy

Started by CharlotteJ2 • 13 replies • 1703 views

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CharlotteJ2 (Texas)
Posts: 2

Posted:

Our present board are wondering at what point our previous boards might have have gone to far in protecting an indivuals right to privacy.

Does an individual's right to privacy prevent the board from revealing who in the association has not paid their annual assessment?

When members who have received violation letters complain about other members' deed restriction violations, is it permissible for the board to name the association members who have received violation letters?

Can the board discuss in public meetings the reasons for and the status of law suits against specific members because of back dues and/or deed violations?

Do members give up the expectation for confidentiallty in meeting with the board if they bring several other residents to that meeting with the board and/or later publically discuss the meeting?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By CharlotteJ2 on 11/29/2008 2:47 PM
Our present board are wondering at what point our previous boards might have have gone to far in protecting an indivuals right to privacy.

Does an individual's right to privacy prevent the board from revealing who in the association has not paid their annual assessment?

When members who have received violation letters complain about other members' deed restriction violations, is it permissible for the board to name the association members who have received violation letters?

Can the board discuss in public meetings the reasons for and the status of law suits against specific members because of back dues and/or deed violations?

Do members give up the expectation for confidentiallty in meeting with the board if they bring several other residents to that meeting with the board and/or later publically discuss the meeting?

Charlotte,

It's my personal opinion that board members should not disclose the names of members who are delinquent and/or in violation of the CCRs. Of course once the assn has filed legal action against a member that info become a matter of public records. However, that still doesn't mean the assn should publish names.

When members complain against other members' violations all the board has to do is say "everything's taken care of" w/o divulging any further info.

With regard to lawsuits, the Board must be very careful about what they divulge to the members. Some info is a matter of client/attorney privilege. I would suggest asking the attorney what info can be given to the members.

If a member is meeting with the BOD to discuss a delinquency and/or violation and that member brings other members to the meeting, then the Board may discuss anything they wish about the matter. If the member in violation wants others present that should be their right. If they want to tell the whole community what transpired in the meeting, that should also be their right. IMO, in so doing, they have given up any right to confidentiality they may have had. In AZ this type hearing is NOT a cause for a closed session of the board. Don't be surprised that any info given out by a member regarding their hearing with the board is incorrect, especially if the result of the hearing was not in favor of the member. This happened when I was a board member and caused quite a stir in our neighborhood.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Charlotte,

The matter of privacy has been discussed several times in this forum in the past. Some believe the law guarantees one's right to privacy, some do not believe there is any such legal guarantee. Some believe it is their right to know who is delinquent in paying assessments.

Legal issues aside, there is little doubt in my mind that a board is entering into dangerous water when they start to reveal matters that some individuals may regard as personal or private. From what I have seen, the general test is whether or not an individual has the expectation of privacy with regard to a specific situation. One also must be careful in the disclosure of such information to refrain from saying anything that could be interpreted as defamatory or a host of other things. Civil action brought by a homeowner against the association is always a possibility and, win or lose, almost never puts the association in a favorable light.

IMO, best to avoid the potential risk altogether.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Charlotte,

Yes, this has been discussed several times here before and the above posters pretty much put summaries of concern in nutshells.

Your board CAN reassure the Members (who have paid) that everything is being done to collect past dues. The board should have clear and concise steps for collection and can share them with other member and the status of them BUT not name names.

For example you can say 'We have two home where leins have been placed on them, as in our Step 6. We have one home that has received its 2nd step warning, etc. etc. There is $XXXXX amount in uncollected dues, We have collected $XXX of it since last September. etc. etc."

At the board meeting, no names are revealed, only the facts about the issues.
Some boards discuss the address, but not the resident's names.

Since the board should go into Executive Session to discuss disciplinary issues, the board is bound to secrecy about what is discussed there. There, names can be discussed. Only the board attends ES meetings.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By SusanW1 on 11/30/2008 6:01 AM
Some boards discuss the address, but not the resident's names.

In some instances, doesn't revealing the address amount to revealing the resident's name? I'm not suggesting that it isn't done by some boards, just questioning how in some cases it can be considered to be different.

KirkW1 (Texas)
Posts: 1,665

Posted:

Robert,

I am with you in that sometimes disclosing an address is tantamount to disclosing a name. In fact, sometimes it could be worse then disclosing a name.

As a note, I saw yesterday an article that the 7th circuit court has ruled that HOA's must abide by the Fair Debt Collection Practices Act. (http://condolawyers.com/articles/7th%20Circuit%20Rules.htm) While this ruling doesn't apply to all, and is apparently in conflict with some other circuits, it is something to be aware of.

There are people who advocate publishing the names of people who have not paid in hopes to shame them into paying. I personally believe that this causes more problems then it solves regardless of legal precedent.

As for when people complain about other's violations, often it is a result of feeling like they have been unfairly singled out. I would make note of their complaints and promise to check into them. If the violation is real and not already being worked on then it should be worked on. If it is being addressed then tell the complainer it is being addressed.

FrancescaM (Washington)
Posts: 264

Posted:

According to our governing docs.. we can post the homeowner's on a list and hang them in a public place or even add them to the minutes. But because our board is not into public scorning.. we do not do this, however..... past due owners are immediately sent to our atty after 90 days.. no looking back.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By FrancescaM on 11/30/2008 8:09 AM
According to our governing docs.. we can post the homeowner's on a list and hang them in a public place or even add them to the minutes. But because our board is not into public scorning.. we do not do this, however..... past due owners are immediately sent to our atty after 90 days.. no looking back.

What, you hang your delinquent homeowners????? That's pretty drastic!!!!

Just kidding. Couldn't let the opportunity go by.

AnnaD2 (Florida)
Posts: 960

Posted:

We've wrestled with this one a lot, ourselves. We have decided to not print or publish names nor addresses. Every month we say how many owners are delinquent. We DO talk about it at meetings; and we do let the members know what is happening with the liens and/or legal processes.

We also make it very clear that once a lien has been placed on a property that it is public information and anyone with a computer can access the county court records. Owners are quick to look up which of their neighbors have liens filed against them. Word spreads quickly but the Board never embarrasses anyone by listing their names or unit numbers.

FrancescaM (Washington)
Posts: 264

Posted:

Quote:

Tee hee.. hang the list in a public place..

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

I wonder if the best approach to the privacy issue would be to have a bylaw provision enacted by homeowners at an annual meeting. Short of a bylaw provision, then perhaps a policy resolution could be adopted at an annual meeting, outlining what is divulged and what is not. Such a policy resolution is not binding on the board, but it would express the sense of the members.

I think Bruce has posted the best, level-headed common sense approach to this sticky wicket.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I said:

Some boards discuss the address, but not the resident's names.

NOTE: I said "some"

Our board discusses addresses only because there are motions to shut off the water, due to non payment of dues. The addresses are listed in the motion.

USED to be that names and circumstances were discussed. They finally stopped doing that.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kirk wrote: "As a note, I saw yesterday an article that the 7th circuit court has ruled that HOA's must abide by the Fair Debt Collection Practices Act. (http://condolawyers.com/articles/7th%20Circuit%20Rules.htm) While this ruling doesn't apply to all, and is apparently in conflict with some other circuits, it is something to be aware of."

I'd not heard of this ruling; however I have been hearing that HOAs are subject to the Fair Debt Collection Practices Act. And, if that is the case then HOA BOD's should be aware of section 806 - Harassment or abuse (15 USC 1692d), which states the following conduct is a violation of section 806: "the publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency. . ."

IMO, it's much better to be safe than sorry and what good it accomplishes by publishing names of delinquent members is lost on me.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Mary, Kirk,

Interesting, informative input. Thanks.

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