In current events, privacy is a hot topic. From the tragedy of paparazzi chasing Princess Diana for a good story, to the salacious presidential sex scandal, to the wholesale distribution of personal information about private citizens through the Internet, our attention has been focused on the invasion of individual privacy. Often we take our right to privacy for granted. With all the publicity the topic has received, it's worth examining the nature and origins of the right.

Freedom of religion, speech, press, and the right to peacefully assemble are all guaranteed to us under the First Amendment to the United States Constitution. Our right to be secure in our person, houses, papers, and effects is similarly guaranteed to us by the Fourth Amendment. Further, the Fifth and Fourteenth Amendments ensure us equal protection and due process under the law. While the drafters of the Constitution did not specifically provide for a "right to privacy," it has been held by the United States Supreme Court to exist in the "shadow" of our enumerated constitutional guarantees. So important is the right that it has been said to be older than the Bill of Rights itself and is inherent in the very concept of liberty. Our right "to be let alone" and to control the distribution of information about ourselves is the most comprehensive of rights and the right most valued by civilized people.

The right to privacy, however, is not absolute and is subject to certain limitations. By living together in society we, by necessity, relinquish some of our individual freedoms for the common good. As citizens, we are all assigned social security numbers, file tax returns, register to vote, declare our political affiliation, register our automobiles, license our pets, record deeds to our properties, apply for marriage licenses, and provide information about ourselves and our families for birth and death certificates. In addition, we fill out countless other forms and questionnaires. Purportedly, we are required to provide all this information so that the government can fulfill its obligation of ensuring us a safe and peaceful environment in which to live and raise our families.

So too, when we choose to live in a community association and obtain all the benefits such living has to offer, we must give up a little bit more of our freedom. Whether we can have pets, and if so, what kind. The color we can paint our home; what we can put on our balcony or patio; whether we can work at home; whether we can rent our property; who can live with us. These are some of the fundamental issues that may be profoundly affected by the community in which we choose to live. Moreover, by living in a community association we must share certain items of information about ourselves and our families with our association in order for it to discharge its obligations to maintain the common elements and pay the common expenses.

The question becomes, what does our association, and for that matter our government, do with all the information gathered? Mostly this information is used for legitimate purposes, such as sending our assessment bills, issuing pool passes, parking permits and the like. However, there exists a sinister side to collecting all this personal information - the dissemination to third parties. For example, co-owners are entitled to examine our association's books and records, and under statute, so are any contract purchasers of properties within our association. Although there are certain records which can be withheld by an association, access is very broad. Generally, once our neighbors have this information, there is no restriction on what they do with it.

Government units may also compel access to association records. For example, an association may be required to surrender information on residents' vehicles to the appropriate authority for tax purposes. Once the government gets this information, it becomes public record for all to see. Moreover, unlike single-family homes, the government may further intrude on the privacy of community association residents when police go on to the common element (private property) without individual owner consent. The association itself, since it controls the common elements, can authorize such access irrespective of the wishes of individual owners. Another threat to the privacy of association records is in the arena of litigation - both when the association is a named party and even when it is not. Through the process of discovery, third parties may have access to an association's records that may be relevant to a particular lawsuit. Here again, once the information makes its way into a court file, it enters the public domain and becomes subject to general dissemination.

What can be done to prevent abuses and overly intrusive invasions of our privacy? First, associations can examine the records maintained on owners and residents to determine what information is essential for the orderly operation of the organization. In this regard, the association should develop and implement a record retention policy which provides that only necessary information is collected and for the destruction of files and records no longer useful or needed. Also, an association can develop and adopt a confidentiality policy tailored to applicable state statutes and its by-law provisions pertaining to the access and release of information to co-owners, residents, contract purchasers, and third parties.

With respect to discovery responses in litigation, an association should ask counsel to request a protective order which requires that any sensitive information released be kept confidential and which provides that all documents produced are returned or destroyed at the conclusion of the litigation. The association can control police access to the common element. Boards should closely examine whether it is in the best interest of residents to waive an important right and permit the police access to the property whenever they want. Community consensus on this issue can assist boards in making these decisions which affect all residents.

Privacy, along with our other basic human rights, should be zealously protected, as freedoms once surrendered are difficult to regain. While we knowingly and voluntarily give up some of our individual freedoms when we become members of a community association, unwarranted and unjustified intrusions into our private affairs can and should be reduced by conscientious and concerned boards placing reasonable restrictions on the information acquired and disseminated through the association.