Privileged documents

Privilege is not the same as executive session

A board that discusses a lawsuit in executive session sometimes assumes the whole conversation is now legally privileged. It is not automatically. Executive session is a confidentiality norm under the association's parliamentary authority: the people in the room agree to keep it secret. Robert's Rules is explicit that this secrecy does not itself change the legal status of anything discussed.

"Yes, votes can be taken in executive session. Proceedings in an executive session are secret, but are not restricted in any other way."

Source: Robert's Rules of Order Newly Revised, Frequently Asked Questions, The Robert's Rules Association

Attorney-client privilege is a separate, narrower legal doctrine. It attaches only to genuine communications with the association's own attorney and to litigation work product, not to a topic simply because a director labeled it "executive session." California and Florida each carve privileged material out of what an owner can inspect, but they treat it as its own category alongside, not the same as, executive session minutes.

States exclude privileged material differently

Which categories a statute lets the association withhold varies by state. This course verified two states in detail.

For any other state, check your own official-records statute and your governing documents rather than assuming either of these lists applies to you.

Screen before you send, not after

Not everything a board keeps in its files counts as a "record" an owner can demand in the first place.

"Not all documentation that the HOA may have constitutes a 'record' that is subject to inspection by a member."

Source: Inspection and Copying of Association Records, Tinnelly Law Group

The practical risk runs the other direction too: a board rushing to meet a response deadline can hand over something it should have withheld. Practitioner guidance recommends routing a broad request through counsel first.

"Legal counsel may need to be engaged to review specific requests and ensure that records which are not official records, such as attorney-client privileged information, private medical information, personnel records, etc., are not inadvertently produced."

Source: Best Practices for Community Associations in Records Requests, Adams and Reese LLP

Exactly who can waive privilege, and how a blanket "executive session" label interacts with a specific privilege claim, is not settled by any source in this course. When a request touches anything connected to an attorney or a legal dispute, loop in association counsel before you respond.