Tag Archives: records inspection

This summary outlines the Administrative Law Judge Decision in the case of Clifford Burnes v. Saguaro Crest Homeowners Association, Inc..

Key Facts and Background

Petitioner Clifford Burnes, a member of the Saguaro Crest Homeowners Association (HOA), filed a petition alleging the HOA failed to fulfill his request for records in violation of ARIZ. REV. STAT. § 33-1805.

On or about December 31, 2020, Petitioner submitted a certified letter and email requesting COPIES of specific Association documents and acknowledged the statutory fee of fifteen cents per page. The Association received the request on January 5, 2021, meaning the statutory 10-business-day deadline to provide copies expired on or about January 15, 2021.

The Association failed to provide the documents within this deadline. Instead, the HOA made delayed and erroneous attempts to schedule document review and send copies. Early communications were misaddressed or misnamed (using "Norm Burnes" or an incorrect address), delaying the Petitioner's ability to review or receive documents. Petitioner only had the opportunity to inspect the records on February 4, 2021, and did not receive copies until February 27, 2021, after the Association resent the package using his correct legal name, Clifford Burnes.

Main Issues and Arguments

The core legal issue was whether the Respondent HOA violated A.R.S. § 33-1805 by failing to provide copies of requested records within ten business days.

• Petitioner’s Argument: Petitioner asserted the Association wrongly required him to inspect the documents prior to providing copies and failed to provide copies within the statutory ten-day period. Petitioner sought an order requiring compliance, reimbursement of his filing fee, and imposition of a civil fine.
• Respondent’s Argument: The Association argued that it interpreted A.R.S. § 33-1805 to allow them to require a homeowner to inspect documents before providing copies for "efficiency". The HOA claimed to have acted in good faith, attempting to shift the blame for mailing errors to the Petitioner's inconsistent use of the name "Norm Burnes," although counsel acknowledged the HOA possessed the Petitioner's correct legal name and address.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) concluded that nothing in ARIZ. REV. STAT. § 33-1805 permits a homeowners’ association to require members to first inspect records before providing copies requested by members.

Since the Petitioner specifically requested copies and the statute clearly states the association has ten business days to provide copies "On request for purchase of copies of records," the Association was determined to have failed to comply with the statutory mandate.

The ALJ found that Petitioner sustained his burden of proof by a preponderance of the evidence, establishing that the Association violated A.R.S. § 33-1805.

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

1. Respondent must reimburse Petitioner’s filing fee of $500.00 in certified funds.
2. Respondent shall henceforth comply with ARIZ. REV. STAT. § 33-1805.

Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association

Executive Summary

This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.

The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.

I. Case Overview

Case Name

Robert Tomisak v. Arrowhead Lakes Condominium Association

Case Number

20F-H2020055-REL

Office of Administrative Hearings

Administrative Law Judge

Sondra J. Vanella

Petitioner

Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)

Respondent

Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)

Hearing Date

July 9, 2020

Decision Date

July 17, 2020

II. Petitioner’s Allegations

On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.

Mr. Tomisak specifically cited violations of the following provisions:

• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8

• Bylaws: Article 10.3

• Arizona Revised Statutes (A.R.S.): § 33-1258

III. Respondent’s Position and Defense

The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:

1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”

2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.

IV. Key Evidence and Testimony

The March 11, 2020 Email Exchange

The dispute originated with a direct email exchange between the petitioner and the property manager.

• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:

• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:

Hearing Testimony

During the July 9, 2020 hearing, both parties presented their arguments:

• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.

• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).

The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.

V. Legal Framework and Governing Documents

The case centered on the interpretation of three key provisions granting members access to Association records.

Document

Section

Key Provision

11.4.8

“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”

Bylaws

“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”

A.R.S.

§ 33-1258(A)

“all financial and other records of the association shall be made reasonably available for examination by any member…”

A.R.S.

§ 33-1258(B)(4)

“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”

VI. Administrative Law Judge’s Findings and Order

Burden of Proof

The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Central Conclusion

The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:

While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.

Final Ruling

Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.

IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.