Are board minutes confidential?
In this help sheet series, Our Community’s resident agony uncle, Chris Borthwick, offers answers to frequently asked questions about issues not-for-profits are facing.
Dear Agony Uncle,
I have just been appointed secretary to the board of a not-for-profit organisation. The organisation is an incorporated association. Board members are required to sign a confidentiality agreement stating that all matters discussed in board meetings are confidential and must not be divulged outside the meeting.
My question is about access to board meeting minutes. Should these be secured in such a manner that they are not accessible to the general public, or are they public documents? For example, are staff (who are not eligible to be members of the association) able to access board minutes? Sometimes the minutes contain information relating to sensitive staff issues, yet they are kept in an open bookcase in a shared office space, along with other board documents.
The organisation’s constitution makes some provision for members (only) to access minutes of general meetings but does not refer to committee meetings. Our organisation deals on occasion with sensitive issues relating to our clients, so confidentiality is relevant.
I realise there is a legal requirement to produce the organisation’s documents should this be required but am perplexed as to why board members sign a confidentiality agreement concerning what transpires at meetings if the related minutes are filed within a couple of days where their contents are accessible to anyone who wishes to peruse them.
I have researched extensively online only to come up with either conflicting or non-committal results.
Monica Minutes, Victoria
Agony Uncle’s response:
It's complicated. What state are you in?
The Associations Act in several states has provisions stating that any member can consult the minutes of any General Meeting (and in states that don’t, the provision would probably be implied).
No such provision covers the minutes of board meetings, but most states include in their list of things that you have to cover in your constitution a provision that says you have to include a clause setting out what kind of access members have to the organisation’s records in general and the board minutes in particular. This means that your organisation can decide for itself whether it wishes to be transparent or guarded, and it will then have to live with the consequences.
You can decide for yourself, that is, but many groups don’t, choosing the less taxing approach of simply adopting the Model Rules for their constitution. If you’ve done that, you may find that your constitution says something like this –
“The records, books and other documents of the association must be open to inspection, free of charge, by a member of the association at any reasonable hour”
– which, taken at face value, implies they can see the minutes of any committee, not to mention the petty cash book.
In practice, nobody really knows how far this language extends, and to let everybody see everything without restriction may be inconsistent with your fiduciary duties. If something’s really sensitive, hold it back and see if the person asking is willing to take you to court for a certain expense and an uncertain outcome. If you’ve got a little elbow room, though, take the trouble at your next AGM to adjust your constitution so that it specifies exactly what members of the organisation can and can’t see.
That’s all that members of the organisation can see. Members of the board are prima facie entitled to see all the board papers, including the minutes. The board and all its members are collectively responsible for the operation of the organisation, and they can in theory be sued if anything goes wrong, so it’s only fair that they should be able to see exactly what the board is up to. If they weren’t present at a meeting, post them out the minutes.
Board members aren’t entitled to see anything else, though, except in their capacity as members of the association. If a board member wants for any reason to chase up (say) the petty cash book, the staff don’t have to show it to them unless the board moves a motion to that effect. The board has total power, but an individual board member on their own doesn’t have much.
Board members, then, can demand to see the minutes, and other people can’t. That doesn’t mean that you can’t show the minutes to the second larger group if you want to; as a board, you’re perfectly entitled to make particular exceptions to your general rules, and if you want to be transparent and accountable you can (and should) release anything there isn’t a good reason to keep confidential.
Staff are constitutionally simply members of the public and aren't entitled to see anything (though, again, the board can allow anybody to see anything if it wants to).
If the minutes are regarded as confidential, that should involve some degree of protection. What exactly that amounts to – a locked filing cabinet, a secure online folder, a heavy-duty fireproof safe – is up to you.
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