By Alyssa Chirlin, Smith Jadin Johnson PLLC
It is an issue that every community association faces homeowner requests for association documents. But what are homeowners entitled to, and what documents, if any, can an association withhold?
Colorado law establishes some requirements which an association's governing documents may supplement. Colorado community association law is focused on increasing the transparency of associations' operations and, along these lines, requires that specific documents be maintained as association records and that those records be available for inspection to all owners.
The list of documents to be maintained as records by an association is extensive and includes meeting minutes, an association's most recent reserve study, ballots, proxies, and written communications among board members related to any action taken without a meeting, among other documents. These documents must be made available for inspection to owners upon request. An association does not have to compile or synthesize information; it can require that owners submit their requests in writing and describe the documents requested with reasonable particularity. However, the association can never require owners to provide a purpose for their request. Their membership in the association alone entitles them to this information.
There is certain information that the association must withhold from inspection for privacy reasons. This information includes personnel, salary, or medical records of individuals and any personal identification and account information of members and residents. Personal identification information consists of obvious bank account information, social security numbers, and driver's license numbers, but it also includes telephone numbers and email addresses, which may only be disclosed with the owners' prior written consent.
The association may withhold any document that is not specifically required by Colorado law to be maintained as a record. This includes specific documents listed in Colorado law as able to be withheld, including architectural drawings, contracts under negotiation, and records relating to individual owners other than the requesting owner. It also includes documents that an association maintains pursuant to requirements in its governing documents if those documents are not also specifically required to be held as an association record by Colorado law. While this allows associations some discretion in its productions to homeowners, it also allows for inconsistent handling of homeowner records requests.
In order to combat these potential inconsistencies, associations should draft comprehensive inspection and copying of records policies. Not only are such policies required by Colorado law, but they provide necessary guidance to associations. Colorado law does not dictate the contents of an inspection and copying of records policy, but an effective one should not only address what discretionary documents will and will not be produced but should also contain provisions regarding the submission of owner requests, timelines for responding to such requests, the ability of the association to charge for fulfilling the requests, and how the association will fulfill the requests. A thorough policy can act as a quick- reference guide and eliminate the need to analyze the statute every time the association receives a records inspection request.
Once adopted, consistent compliance with the policy can minimize the risks of discrimination allegations against the association and of financial consequences for an association's failure to allow inspection of requested documents in a timely manner. If an association receives a written request from an owner via certified mail with a return receipt requested, and does not allow inspection within thirty days, the association may be liable for fines of fifty dollars a day. An association's inspection and copying of records policy should therefore provide a turnaround time of fewer than thirty days for inspection of records upon receipt of an owner request.
In these ways, a comprehensive records inspection policy will meet legal requirements and increase owners' transparency while protecting the association from liability. While it may seem inconsequential, the inspection and copying of records policy is an important tool in an association's arsenal that should not be overlooked.
Alyssa Chirlin is an attorney at Smith Jadin Johnson, PLLC, a law firm that handles all an association's legal needs, from daily governance issues such as collections and drafting governing documents to insurance claims and construction defect matters.