Q&A: Disclosing the Health Information of an Owner

Q. “Say a shareholder spoke to the president of the board and disclosed his or her health condition. And later on, the president lost re-election to the board and found out that the shareholder did not vote for them. The ousted president went on a rant and told others – including new board members – of that shareholder’s condition. Is that considered a breach of confidentiality or fiduciary duty?

— Questioning the Ethics of It

A. “Board members have a fiduciary duty to keep owner information confidential with regard to information generated by the association (violations, delinquencies, etc.),” says Kerry Bartell, a principal with the law firm of Kovitz Shifrin Nesbit, which has several offices in Illinois. “In this instance however, it sounds as if the owner offered personal information to a board member, although the question posed does not offer the reason for that disclosure. If the information was offered in conjunction with association business (if it impacted their ability to pay their assessment, or the owner made a request for a reasonable accommodation, for instance), then it should be held confidentially by the board members. The duty to keep information confidential extends beyond when that board member actually serves on the board. This is issue comes up with litigation as well, and the duty to keep attorney-client information confidential after an owner’s service on the board ends. If the health information was not offered in an association-based context, then I do not believe that the board member had a fiduciary duty to keep it confidential on behalf of that owner.

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