C.R.S. §38-33.3-317 (“317”) is the all important section of CCIOA which dictates what records the Association is required to maintain and how the membership may request and obtain access to those records. As you have most likely become relatively familiar with the intricacies of 317, you have also likely become frustrated at times with some of the vague language contained within. 317 is about to get an overhaul and effective January 1, 2013, many of the responsibilities of the Association with respect to records will be altered in a manner which hopefully provides more clarity for manager and boards.
The amendments to 317 will clarify or alter 6 main areas of the old 317. Perhaps most importantly, the new 317 clarifies what constitutes “records” which must be maintained. The new list is more detailed and specific and therefore helps to clarify some of the ambiguities inherent in the broad language of the old 317. Of note, is that associations will now be required to maintain written communications among board members which are directly related to action taken without a meeting. Many boards fall into the habit of communicating and at times conducting business via email. To meet this new requirement it may be wise to create specific email addresses for board members so that there is no chance that requestors may be able to access private email accounts. These addresses can simply be passed along to the next board so that all records are easily maintainable and accessible. As always, discretion should be exercised when communicating via email and boards should try as much as possible to limit action to board meetings.
The amended 317 now specifically requires that association “good governance” policies are maintained as part of the official records of the association. Associations are already required to have these policies in place but the amendment of 317 underscores the legislature’s strict requirement of adoption. Associations should take this time to review their policies and make sure that all policies are in place and take the time to adopt policies which they may not currently have and to amend policies which may not be working for them as written. The importance of adopting these policies can not be overemphasized as they are required prior to taking action with respect to enforcement of the covenants.
Another change to 317 will be the removal of the “proper purpose” requirement. Members are now allowed access to the records of the association without the need to articulate the purpose for the request. Members must still submit a written request but it need not contain the basis for the request. This frees up boards from having to determine whether a specific request is in fact “proper.”
The timeline for responding to a request has also changed. Associations will now have 10 days (instead of 5) to provide access to the requested records. The alternative of producing the records at the next regularly scheduled board meeting, if it is to occur within 30 days of the request, remains.
The new 317 also provides that associations may withhold a number of specific records from inspection and copying. In part, these include architectural drawings, contract, leases and bids that are currently under negotiation, and communications with legal counsel. While these records could arguably be withheld prior to the amendment, there is now clear authority for the association to withhold these records when appropriate. The association need not explain why they are being withheld but can rely on the new 317 for the authority to do so.
As amended, 317 also establishes a list of records which must be withheld. These records include personal salary or medical information, and personal identification and account information for members including bank account information, telephone numbers, email addresses driver license numbers and social security numbers. The specific requirement that association must withhold email and phone contact information gained from members should be a welcome change for boards faced with troublesome members that seek this information in attempts to make unwanted contact with the membership. Association should also be sure that their record keeping separates this information from other contact information such as name and address which is readily available to the membership for inspection.
Prior to the amendment, association were not required to respond to record requests via email. As amended, 317 provides that owners have the right to request that records be provided via electronic transmission, if available. In some instances this will assist associations as it is often easier to provide records via email than to provide paper copies or that to have the requestor come to the association’s place of business and make copies. However, this may place additional strain on associations when faced with a large request accompanied with the demand that the records be provided electronically.
As always, but now clearly stated, associations are not required to compile information. As an example, this means that a request for all records related to water damages does not require the association to sort through all records and compile a responsive pile. To the extent that records related to water damage are kept in the files for each particular unit owner, the association does not need to pull and compile these records. The association will however need to provide access to all records where water damage might be at issue.
Overall, the amended 317 should make it easier for associations to identify documents and correspondence which must be maintained. The amendments should also make it easier to determine what must, may or must not be produced. A full copy of 317 as amended can be found online.