Question: I'm fairly new to this board and a matter has come up that requires going back to some old minutes of a closed board meeting. Our CEO says that board members don't have access to past minutes. Is she right? It seems to me that we should have access to all the minutes from day one. Can you give me some advice on this?
Answer: Well, for starters, it isn't the CEO who has the authority to make that decision. She is an employee of the board who "owns" the minutes. Then again, I think I would advise you that the minutes don't belong to you either, since you are a director, not the whole board.
The important fact, however, is that the current board is the only board you have. If the current board speaking with one voice doesn't have access to all the past minutes, then no one has access to them. It is most certainly true that the past board members don't have a right to access any minutes of the meetings they attended. They aren't members of the board any longer, so they have no more right of access than any other member of the organization.
There is one other factor, though, that you may wish to check. Depending on the country, state, province, county or other jurisdiction, the freedom of information laws may have some bearing on the question you are asking. In some countries, the minutes are a matter of public record where public tax dollars are being used by the organization. You may check with your legal counsel on the laws that pertain to your location and organization.
I have also noticed a strange belief on the part of some board members regarding the minutes of closed sessions of the board. There is such an aura of confidentiality about minutes of closed sessions that some boards think they can't even access those minutes of meetings they didn't attend.
I know of some organizations that don't even keep minutes of closed sessions, thinking they are too confidential to record. It is important to remember that only those things that are recorded in minutes of properly called meetings have any legal standing. Recollections of decisions made at closed meetings don't count. Memories fade and people may disagree. Memories of decisions don't count.
Boards acting as a board have the right of access to any past minutes. In fact, I would find it very unusual and suspect, if a board would ban a member from reviewing any minutes even of closed sessions, unless there were a very clear reason for doing so that has legal liability. I say this because individual members also have liability in matters where they can be found to be at fault personally.
I would suggest that you raise this issue at the next board meeting. And be sure that your CEO is present. (You wouldn't want her to miss out on the decision just because the meeting was closed and the minutes weren't available to her.)
Openness and transparency among present and past board members is clearly the best policy. It is also very important that CEOs have access to all decisions of the board, as long as they are an employee.
Les Stahlke, President
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