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Recording Board Meetings

To record or not to record – that is the question. Opinions on what constitutes good governance or good practice in the board room are many and varied. One question that is frequently asked, particularly in relation to not for profit organisations is ‘Should board meetings be recorded?’  This article takes a brief look at both the legal and practical issues relevant to that question.

Legal Issues

Unless the Constitution requires it, there is no legal requirement to tape record a board meeting nor, subject to the comments below, is there any law which says you can’t.

However, tape recording everything said at a board meeting has legal dangers being:

  • Oral defamation that is not recorded is always hard to prove but when you tape record a meeting, there is a permanent record of who said what at a meeting which opens up and increases the possibilities for many (and often petty and destructive) defamation claims
  • It can have privacy implications especially because it is very difficult to have an ‘off the record” tape recording of something that is tape recorded

If it is proposed to tape record a meeting, two further issues arise relating to who and by what authority the tape recording is done. For example:

  • does one board member propose to record the meeting themselves for their own purposes; or
  • does the board authorise by resolution the recording of the meeting generally.

If it is the former, a board member should not be permitted to tape record a meeting without the approval of the other members present. However, if the Board resolves to permit the tape recording of the meeting, then that is a decision the Board can make and it would have the effect of authorising the tape recording on behalf of the Board generally.

Pragmatic Issues

Tape recording of Board meetings is not common and generally should be discouraged.

I am generally opposed to tape recording board meetings because:

  • You have to ask the initial question “Why?” – what is the need and how will tape recording of board meetings improve the governance and performance of the organisation – in fact it can have the opposite effect (see points below)
  • The psychology of tape recording a discussion can (and often does), discourage full and frank discussion and make a meeting so tame and innocuous as to render the discussion facile
  • As such, in making members (and staff) clam up or limit their contribution, tape recording can backfire on Board members as it can tend to compromise their legal duty and ability to actively partake in robust discussion and questioning of issues
  • It can have a serious adverse effect on Board and staff morale as it implies a lack of trust generally and can be perceived as a device for a witch hunt as part of a broader ‘gotcha’ mentality.
  • The issue can be an emotive and divisive one as no doubt, there will be Board members who oppose it and those who support it
  • It can lead to oppressive process issues including whether a member can request the tape be turned off for what he/she is about to say and if so, what rules will the Board invoke to cover this contingency – that then can lead to time wasting discussion about the issue of whether to turn the tape off or not and when to turn it back on again

The response of a director wanting to record meetings to the initial question Why? often revolves around apparent misstatements made at Board meetings or inaccurate minutes.  Even if untruths are said at board meetings, that does not by itself overcome the pragmatic difficulties above especially because:

  • Most significant things said at a board meeting in front of board members are remembered by those present and there is seldom major disagreement on what was said – there is more collective memory than collective amnesia
  • The difficulties with misstatements or untruths usually indicate an issue with what the minutes record as opposed to how the discussion was recorded.

A Board should have a policy on minutes and what they should record that would deal with these problems.  Generally minutes perform 2 roles:

  1. A summary of each item that was discussed; and
  2. If the item gave rise to a resolution, what was the resolution, who moved it and whether it was passed or not.

In the first point above, the summary can include significant facts or statements made during the course of a discussion on an item.

In the context of the pragmatic issues above, concerns about untruths or inaccuracies are better addressed by examining the Board’s policy on minute taking and to what extent the minutes adequately record discussion as well as resolutions. Not all discussion at a Board meeting results in a resolution so consideration needs to be given as to what extent discussion on an issue should be recorded.

Consideration should also be given to the form and substance of reports given to the board, most notably the CEO’s report.

As always, your organisation is unique and we’d be happy to assist you to address these issues to suit your own circumstances.

Joanne O’Brien
Partner, CRH Law

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