Who’s Calling, Please?
This Law Review was written by
Susan Feingold Carlson and edited
by Jed Mandel. Both practice in
the Association Law Group at Neal,
Gerber & Eisenberg, LLP, and
serve as the Association Forum’s
legal counsel.
Q: How should my staff respond to telephone callers requesting association
records or information about a member?
A: As a general rule, an association’s
records are not open to the public, and
an association staff member is not obligated to provide callers with information requested over the telephone or
otherwise. Just what should or must be
provided, however, and under what circumstances, is often counterintuitive to
how association staff are trained — to be
as helpful as possible. Thus, every association should adopt policies addressing
how staff members should respond to
individuals making telephone requests for
records or other information.
First, staff should recognize that no
caller (except, possibly, a member) is
entitled to an immediate response to a
request for information. Some not-for-profits do have an obligation to make certain records available for inspection and
copying. For example, those exempt from
taxation under the Internal Revenue Code
must make their exemption application
and annual information returns available
to interested members of the public. Similarly, certain state laws require not-for-profits to make their corporate minutes
and financial records available to voting
members under narrow circumstances. In
neither case, however, are organizations
required to provide (or agree to forward)
such information in response to telephone inquiries.
whenever communicating with a caller
requesting information, whether or not
the individual is known to the association.
For example, someone may call to ask
whether Mr. X or Company Y is an association member. That question sometimes is
followed by additional inquiries, such as
whether the member is in good standing,
who (in the case of a corporate member)
the member’s principal(s) are, and whether
the association has ever taken disciplinary action against the member. The caller
also may ask whether the association has
a code of ethics and, if so, whether he
or she may have a copy. Another caller
may inquire as to whether Company Z, a
nonmember, has registered as an exhibitor at the association’s upcoming annual
meeting. That caller’s next question may
relate to the products to be shown by that
exhibitor or the location of the exhibitor’s
booth in the exhibit hall.
The problem is that while some
requests are benign, others are not, and
it may be difficult to distinguish between
the two, especially after an initial, seemingly innocuous inquiry. In the first
example above, the caller may be involved
in litigation against the member about
whom the inquiry is being made, and he
or she may be looking for information to
support a particular claim in that litigation. In the second example, the caller
may be a competitor of the exhibitor,
who, for one reason or another, is seeking
information to use to its advantage. By
the time it becomes clear that the caller
is asking for more information than the
association may wish to disclose, too
many questions already will have been
answered, and it may be too late to assert
a policy that “information is not provided
over the phone.”
The better practice for the organization is to follow a policy under which
staff members are directed and trained to
respond to every (nonmember) telephone
inquiry by politely declining to provide the
information requested and explaining that
all such requests must be made in writing.
Such a policy not only promotes consistency in communications with the public,
but it also allows the organization to formulate reasoned responses to the inquiries it receives. Some requests may be
for information the association routinely
makes available and may be answered in
the ordinary course. Other requests may
involve more sensitive information. Under
those circumstances, member inquiries
should be treated with the same level
of scrutiny as inquiries from the general
public. The organization should consider
who is making the request and for what
reason. Regardless of the response to be
given, asking the caller to put his or her
request in writing provides the organization with a much better opportunity to
respond thoughtfully and appropriately.
Of course, every rule has exceptions.
When an association maintains a publicly-available list of members that provide
services in specific geographic areas, staff
typically is allowed to provide callers
with a name or names from that list. To
the extent such lists are available on the
association’s Web site, however, the better response may be to provide the caller
with the appropriate link.
As your organization considers a policy
regarding communications between staff
and the general public, it also should consider related matters, such as its policies
on record retention and who has authority
to speak for the association. Those policies, too, are all part of an overall scheme
that is critical to minimizing the organization’s potential risks.
The answers provided here should not be construed
as legal advice or a legal opinion. Consult a lawyer
concerning your specific situation or legal questions.
