Among the more difficult issues that face a Board is whether or not to make known to the Residents of the Community negative information it may acquire concerning an individual Resident.  By and large most Boards tend to be acutely sensitive to preserving the privacy of their  Residents and, if anything, err on the side of caution.  This is certainly appropriate as there is little justification to disclose any private information about Owners and Residents unless the safety of the Residents is involved.  The only common exception to this general rule relates to assessment delinquencies.  There, other Owners are entitled to have access to the delinquency reports as part of their right of access to the association’s financial records.  However, the Board should refrain from disseminating or posting such lists as that violates many state debt collection laws and, depending upon who does the actual posting or dissemination, could violate the federal debt collection statute.

            Returning then to the issue of safety the matter becomes more difficult.  Unfortunately, in this “age of liability” Boards need to carefully weigh the potential for liability which may be imposed upon the Association for failing to disclose with, again, the individual’s right of privacy.  Unfortunately, it requires little imagination to conceive of the law suit which would follow if a Board knew of information which presented a potential danger to the Residents and failed to disclose it.  This is particularly the case when it comes to the issue of persons who are registered sex offenders. 

            As a result of a tragic incident which occurred several years ago, the New Jersey legislature passed a law commonly referred to as Meagan’s Law.  That law categorized convicted sex offenders into three levels of offenders based upon the seriousness of the offense and the “likelihood of recidivism” - that is, the likelihood that the offender would repeat sex crimes.  The law then goes on to provide for different levels of disclosure based upon the level, or tier as it is called, of the classification. 

            Most states have passed similar laws though the details of such vary from state to state.  What is significant about these laws is that they represent a legislative determination that there exists a substantial likelihood that persons convicted of certain sex crimes will repeat those crimes and thus the public’s right to know of the presence of such a person in their midst outweighs that person’s right to privacy.

            Thus, it would seem that a Board which learns that a Resident of their Community is registered as a sex offender would certainly be acting appropriately in making such known to its Residents and, given the existence and purpose of the Meagan’s law statute, would likely have little exposure to liability provided it made its disclosure in an appropriate manner. 

            How then should the disclosure be made?  Here the Board can meet its duty to the Residents and still, from a pragmatic point of view, respect the individual’s privacy rights.  Rather than issue a notice saying that it has come to the Board’s attention that John Doe who lives in Unit A is a convicted rapist, a Board can advise the Residents that it has come to its attention that a particular resident is registered with the State Criminal History Records Board, or whatever agency exists in the particular state, as a sex offender (of course the Board wants to make sure of this before it issues such a notice), provide a copy of the statute and refer the Residents to the appropriate authority - that is, the Criminal History Records Board or local police depending on the statute and the level of offender.  By making the disclosure in this way the Board has met its duty to put residents on notice and at the same time not unnecessarily identified the subject individual.  This is particularly import in Massachusetts where the statute has been successfully changed in regard to how offenders are classified.  Thus, matters are in flux as to whether an offender can be classified at all until given a hearing resulting in confusion over what disclosure is permissible.

This same approach can be followed in other similar situations.  When a Board becomes aware of information which presents a threat to the health or safety of its Residents there likely exists a duty to disclose such.  The disclosure should, to the extent it involves a Resident, or Residents, be done in such a way, to the extent possible, to preserve the subject Resident’s privacy while at the same time provide adequate information to the other Residents so that they may appropriately protect themselves.  The task is not easy.  However, with care what is proper can be accomplished.