- Books and Records
- October 10, 2016 | Authors: Deborah M. Casey; Jeremy R. Moss
- Law Firm: Vandeventer Black LLP - Norfolk Office
- Association books and records are the subject of considerable scrutiny, in and out of court. Association members demand and are entitled to access to records for a variety of reasons: evaluating board decisions, staying informed, and communicating with members. Such demands can also be misused and abused as well, such as attempting to manufacture a defense for violations, overburdening associations and managers with multiple and duplicate requests.
One of the first issues to consider is what constitutes an association book or record. Books and records can be in paper format, electronic or digital. If a record is kept by or on behalf of an association, it likely is an association record. Personal notes taken by board and committee members likely are not books and records. But, it is difficult to know the difference.
Generally speaking, books and records kept on behalf of an association are subject to examination and copying by association members in good standing or his authorized agent so long as the request is for a proper purpose related to membership in the association and not for pecuniary gain or commercial solicitation. The right of examination exists without reference to duration of membership and may be exercised only during reasonable business hours or mutually convenient time and location and upon five days’ written notice reasonably identifying the purpose of the request and the specific books and records requested. To the extent that are retained, e-mails among board members or committee members are a book and record of the Association. Access to books and records is governed by Section 55-79.74:1 of the Condominium Act and Section 55-510 of the Property Owners’ Association Act.
Some records may be withheld from inspection and copying, including the following:
- personnel matters related to specific, identified persons or a person’s medical records;
- contracts, leases and other commercial transaction currently in or under negotiation;
- pending or probable litigation;
- matters involving administrative or formal proceeding before a governmental tribunal for enforcement of governing documents or rules promulgated by the Board;
- communications with legal counsel related to the above or protected by the attorney-client privilege;
- disclosure of information in violation of law;
- meeting minutes or other confidential records of an executive session held pursuant to statute;
- records regarding executive session; or
- individual unit owner or member files, other than those of the requesting owner
The schedule should be part of a comprehensive records policy that identifies what is an association record, addresses record retention, and states the manner, to whom and how records need be requested, among other things. Having a comprehensive policy will help ensure an association is consistent, uniform and organized in responding to record requests.