Members of Washington’s homeowners’ associations and condominium associations have the right to access and review the records maintained by their association. However, there are certain limitations on this right, and it is important to keep that in mind when making any requests to your association for access to these records. First let us discuss the general right that owners have to access association records and then turn to the limitations on this right.
- Owners’ Right to Access Association Records
There are different statutes which govern the owners’ right to access and review their association’s records and the statute which applies depends on what type of association the association member belongs to. RCW 64.32.170 and RCW 64.34.272 apply to condominium associations created before July 1, 1990. RCW 64.34.272 applies to condominium associations created after July 1, 1990. RCW 64.38.045 applies to homeowners’ associations that are single family homes not governed by RCW 64.32 or RCW 64.34, i.e., the residences are not condominiums. RCW 64.90.495 applies to all associations created after July 1, 2018. Each of these statutes largely grants the same right to an owner of a home in an association to access and review their association’s records. Specifically, the Association is required to maintain all financial records and other association records, e.g., meeting minutes, correspondence, notices, incorporation documents, etc., in a manner in which the records are reasonably available to any owner, or their representatives, interested in reviewing them.
While an association is required to make the records available for review, an owner should also be aware that the association can also charge the reasonable expenses that arise from making these records available. This includes, but is not limited to: any fees related to copying the relevant documents, the time spent by staff reviewing and compiling the relevant documents, travel expenses, if applicable, etc.
- Limitations on an Owner’s Right to Access Association Records
There are certain limitations to an owner’s right to access certain association records. RCW 64.90.495(3) provides a list of records that the association may withhold. This list includes:
(a) Personnel and medical records relating to specific individuals;
(b) Contracts, leases, and other commercial transactions to purchase or provide goods or services currently being negotiated;
(c) Existing or potential litigation or mediation, arbitration, or administrative proceedings;
(d) Existing or potential matters involving federal, state, or local administrative or other formal proceedings before a governmental tribunal for enforcement of the governing documents;
(e) Legal advice or communications that are otherwise protected by the attorney-client privilege or the attorney work product doctrine, including communications with the managing agent or other agent of the association;
(f) Information the disclosure of which would violate a court order or law;
(g) Records of an executive session of the board;
(h) Individual unit files other than those of the requesting unit owner;
(i) Unlisted telephone numbers or electronic addresses of any unit owner or resident;
(j) Security access information provided to the association for emergency purposes; and
(k) Agreements that for good cause prohibit disclosure to the members.
While this statute only applies to associations created after July 1, 2018, the list is a useful guide for owners in associations governed by the other relevant statutes to evaluate potential obstacles in obtaining the records. It is important to note that this statute, RCW 64.90.495(3),states that these records “may” be withheld, and therefore, it does not provide the association with the blanket right to deny all requests for records enumerated in this list. This is a relatively new statute, so there have not been any cases that have established precedential law which provides additional clarity on the circumstances when an association “may” withhold these kinds of records. Therefore, the association’s discretion to grant or deny a document request is only reviewed in terms of the Board members’ duties of reasonable and ordinary care. As such, if the association is withholding these documents on a reasonable basis, then a court would likely support that decision.
One common limitation on an owner’s right to access the association’s records is personal information of other owners within the association. This information is generally not available unless it is subject to a dispute in litigation. An association can either redact this information from the record or withhold the entire document if it is not possible to redact.
Another common limitation is related to documents which are protected by attorney-client privilege or the work product doctrine. The attorney-client privilege applies to communications and advice between an attorney and client and extends to documents which contain a privileged communication. The work product doctrine applies to all documents which are created by an attorney in anticipation of litigation. There are certain waivers and exceptions to both the attorney-client privilege and work product doctrine, but generally an association can withhold these types of documents.
It is important for members within homeowners’ associations and condominium associations to be apprised of their right to access and review association records. While this right is broad, it is important to keep in mind the limitations described above when making these requests to avoid any potential unnecessary disputes.