'PRIVACY' OF BOARD CORRESPONDENCE HAS LIMITS

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'PRIVACY' OF BOARD CORRESPONDENCE HAS LIMITS

(c) 2001-2007 S.GLASSMAN AND D.VANITZIAN. All rights reserved. The Associations and Common Interest Living articles and columns may not be reprinted or retransmitted in any form without the express written consent of the copyright holders. The authors take no position regarding any documents or accompaniments that may be enclosed with, attached to, or alongside said article reprints or distribution. Los Angeles Times, Real Estate Section, "Associations," Septemebt 2007 "Privacy" of Board Correspondence Has Limits By Stephen Glassman and Donie Vanitzian, Special to The Times

September 30, 2007


By Stephen Glassman and Donie Vanitzian, Special to The Times
September 30, 2007

QUESTION: The board of directors at my association copied my correspondence and gave it to other homeowners and the management company without my consent. The management company has given copies to their employees and several lawyers in law firms both related and unrelated to my association's business. I wrote the association attorney, putting him on notice that he did not have my permission to use my correspondence for any reason. He wrote me:

"It is difficult to take your letter seriously when you preface your correspondence with a meaningless statement that it is a 'privileged communication.' I can assure you that there are no privileges applicable to your letter, and it could not in any way be considered a communication in relation to 'settlement negotiations.' Your letter gives me the impression that all you want to do is put up roadblocks to any resolution of matters with your association. Please do not respond to this letter with a lengthy letter of rebuttal. It is a waste of your time. A truly reasonable person who wanted to get this problem resolved would do just that!"

Is that attorney correct, and how can I prevent the association from circulating my correspondence?

ANSWER: Whether any privileges attach to the letter you wrote depends on to whom the letter was written and in what context.

Even with no statutory "privilege," an individual can insist that correspondence be held in confidence by marking it "personal and confidential, not for publication" by the person or persons to whom it is addressed. That puts the association and all its agents on notice that the letter was intended to be private -- between the board of directors and you.

Privileged communications typically refer to a specific set of writings exchanged in a recognized context in which a "privilege" attaches. Most familiar is the attorney-client privilege in which the only person who can disclose the contents is the client. Any letter written to a governmental or quasi-governmental agency as part of an investigation -- for example, a letter to the California State Bar complaining about an attorney -- is privileged under the Civil Code, but in that case it means only that the letter cannot be used as the basis for a lawsuit against the person making the complaint.

Under the California Constitution, individuals have personal privacy rights, but that does not necessarily include letter writing. However, adding the "personal and confidential" admonition provides evidence of the letter writer's intent to preserve his or her privacy.

A management company has no rights with regard to any communications by you. As agents of the association, they have no more right to use, forward, share, disseminate or publish any of your communications for any reason than the board, and that right can be limited by an assertion of privacy.

Care must be taken that private letters are clearly marked as confidential and not for publication and distribution. Be certain to note the number of pages of that communication and include the admonishment on each page. That cannot guarantee that your association will not circulate it to others, including their attorneys, but at least you will have put your intentions in writing and the recipients on notice that should some use other than that for which the correspondence was intended be made of your letter, you may have a right to sue for violating your privacy rights.

Send questions to noexit@mindspring.com.


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