In most cases, condo records are nothing to fight over

Section 19 of the Illinois Condominium Property Act and Section 107.75 of the Illinois General Not for Profit Corporation Act allow the members of an association to review the books and records of the association under defined circumstances.

For purposes of this discussion, I will refer to the condominium act primarily, since the Not-For-Profit Corporation Act, which is the governing statute for townhouses and HOAs, in most instances defers to the bylaws. The purpose of these acts, respectively is to allow the members to review specified documents upon request, presumably with honorable intentions.

There are limitations on both the owners and the board as to what, when and how, so that it does not become a campaign of harassment or abuse of authority.

Over the years, several controls have been installed both to protect owners and board members. It has been my experience that whenever an individual or a group is planning to remove the board, upset about an increase or a special assessment, or has been accused of some type of violation of the declaration or rules, that person or persons will invariably make a demand to see everything under the sun.

Conversely, when boards perceive that an owner or a group is stirring up turmoil in the community or attacking the board's performance, they will pull in their horns and begrudgingly release any documents until forced to do so.

In neither instance is this healthy for an association and since the board members are owners, they could theoretically be on either side of the table.

Likewise, the records belong to all the members of the association and the duly elected board and its authorized agent are merely the custodians for the benefit of the owners.

Section 19 of the Condominium Act, one of the better written provisions, must be followed to the letter. (It is also a good rule of thumb for HOAs, as well.)

First, it is worth noting paragraph (e), which mirrors similar language in the Not-for-Profit Act. A member must "submit a written request" … stating with particularity what is sought to be examined and "a proper purpose for the request." What is a proper purpose? Is it a pure heart, the highest motives possible, a noble quest … ?

This requires a subjective test and must be reviewed on a case-by-case basis. If the owners are unhappy about a special assessment and want to review financial records, this makes perfect sense. If a hotly contested election resulted in one of the defeated candidates wanting to review the election records, this too is logical.

However, if an owner is angry with the on-site manager and wants to review her personnel file, in this instance the board must draw the line.

The records listed in Section 19 available for review, include: the declaration and governing documents, minutes for the last seven years and insurance policies.

Also, contracts and leases then in effect. Note: This distinction is important because frequently an owner or group will demand to see confidential bid documents that should not be disclosed to protect the confidentiality of the contractor's bid, which was submitted in good faith.

Also records to be made available include a current voting list of names, addresses and weighted vote of the members Known phone numbers and e-mail addresses are not required. Also ballots and proxies for all votes taking place in the preceding 12 months, and books and records of account for the preceding 10 years.

In addition, if an association has adopted a policy protecting the secrecy of the balloting process, then identifying unit numbers can be restricted and even deleted.

This seems relatively simple. There is nothing on its face harmful or detrimental to the board or the association, and this list could even be a guideline for HOAs.

What should not, or cannot be disclosed for reasons of confidentiality and privacy are personnel files, discovery documents in pending litigation, documents pertaining to threatened litigation or administrative actions, owners delinquency files, or individual owner sales or leasing files.

Although not specifically listed in the act, there are other matters that should not be disclosed and in some instances are protected under Federal guidelines, the U.S. Constitution or case law. For example, a board does not disclose minutes of closed sessions because, a) they are ostensibly confidential in nature and, b) as a result, no minutes should be taken. Records involving the health or medical condition of an owner are protected by Federal statutes. (The problem with this is in the event of an owner who no longer has capacity, next of kin must be notified, and the rights of all owners and the health and safety of the building may override the persons right to privacy.)

What becomes a problem for a board that is reluctant or fails to cooperate is that the condo act requires board cooperation or an owner can file an action and recover his/her attorneys fees. "Failure of an association's board of managers to make available all records so requested within 30 business days of receipt of the member's written request shall be deemed a denial."

The board has to make a decision by removing any emotional issues and deal with it objectively. Even an owner who attacks a board members birthright, is still entitled to his or her rights under the act. If they make a timely request, and do it properly, then the board, regardless of how scurrilous this person is, must release the records.

Frankly, you have to ask, what's the difference? So they get, records … so what? If the financial records are in order, no confidential matters are disclosed, and they make a proper request, there is no reason not to release the requested records. It is better to just cooperate, than resist. It just creates another issue to fight over and get a stomach ache and if the board guesses wrong on the reasoning for denial or delay, they could be found to be in bad faith and get hit with a whopping sanction.

There are several related issues; the owner making the request is responsible for the actual costs of copying and "retrieving the records." Obviously, the more obscure the record, the more it might cost to retrieve. In this day and age of electronic record-keeping, an association with up-to-date technology can transfer records with the push of a button. However, many management companies and associations rely upon dusty boxes in high up or far-away places. The board, particularly when dealing with a current or past delinquent, could also request to be paid in advance, or even require the owner to post a deposit to cover the costs of retrieval and copying.

Another issue is whether the owner is requesting copies of documents as stated, or whether they want to come into the management office with their accountant and review the ledgers. In the instance of an in-person review, they must be willing to accommodate the custodian by coming in during normal business hours, with sufficient advance notice. In Chicago, for example, the owner requesting an in-camera review is entitled to come in within three days of the request.

Again, the board and the manager should make reasonable efforts to cooperate without being arbitrarily difficult, and of course, an outright denial must be made only with the strongest evidence possible.