"Confidentiality" of Draft Minutes

[Jeanne Hamilton]

Our condominium association Board of Directors (BOD) has published very, very few minutes of their meetings for the past 5 years and what they have sparingly published are draft minutes with the last one being for a January 2023 BOD meeting.   The BOD president himself announced on Facebook that DRAFT minutes were published to the HOA website and nearly a year later those minutes are still an unapproved draft version.  When a group of owners asked to see all of the draft minutes of other meetings, these were denied to them with the HOA’s attorney claiming that the draft minutes were “confidential” because, according to Robert’s Rules of Order, minutes are not official until they are approved.  But are they confidential?  The attorney isn't claiming that draft minutes do not exist, he's using Robert's Rules of Order to claim they are confidential.   I don’t think the HOA legal counsel is aware that the BOD has waived confidentiality of draft minutes by publishing them to the HOA owners’ portal. 

My understanding of RONR is that it refers to the “secretary’s draft of the minutes,” “the secretary’s draft”, and “a draft of the minutes of the preceding meeting” and there is nothing in RONR that restricts in any way posting or distributing those “secretary’s draft of the minutes,”  etc.   Further, the NC BAR Association’s “Common Interest Communities, 2^nd Edition” does not mention draft BOD meeting minutes as being confidential. 

I’ve done my best to read and research but not being a parliamentarian, I’m wondering if my conclusions are accurate.  I am hoping you can give some illumination to what I view as an odd interpretation of Robert’s Rules of Order. 
 

Edited November 21, 2023 at 12:32 PM by Jean Hamilton
part of sentence missing

[Joshua Katz]

On 11/21/2023 at 7:30 AM, Jean Hamilton said:

Our condominium association Board of Directors (BOD) has published very, very few minutes of their meetings for the past 5 years and what they have sparingly published are draft minutes with the last one being for a January 2023 BOD meeting.   The BOD president himself announced on Facebook that DRAFT minutes were published to the HOA website and nearly a year later those minutes are stil unapproved draft. 

Publishing draft minutes seems an odd thing to do, and why are these minutes unapproved a year later?

On 11/21/2023 at 7:30 AM, Jean Hamilton said:

When a group of owners asked to see all of the draft minutes of other meetings, these were denied to them with the HOA’s attorney claiming that the draft minutes were “confidential” because, according to Robert’s Rules of Order, minutes are not official until they are approved.  But are they confidential? 

Until approved, they are not minutes. But that doesn't make them "confidential." It also doesn't mean, though, that you are entitled to them. They're the secretary's notes, and the secretary need not provide them on request. The membership can require the board to produce its minutes, though, and the board may not evade that by simply not approving its minutes. A group of members has no right to demand minutes or draft minutes.

But that's as far as RONR goes. You may have different rules, and your organization is almost certainly subject to procedural laws that may say something different.

On 11/21/2023 at 7:30 AM, Jean Hamilton said:

don’t think the HOA legal counsel is aware that the BOD has waived confidentiality of draft minutes by publishing them to the HOA owners’ portal. 

There is no concept in RONR of waiving confidentiality, and the legal concept is beyond the scope of this forum. I will note, though, that publishing a document of a certain type ordinarily does not waive confidentiality (if it exists) for other documents of the same type.

 

[Jeanne Hamilton]

On 11/21/2023 at 7:37 AM, Joshua Katz said:

Publishing draft minutes seems an odd thing to do, and why are these minutes unapproved a year later?

Until approved, they are not minutes. But that doesn't make them "confidential." It also doesn't mean, though, that you are entitled to them. They're the secretary's notes, and the secretary need not provide them on request. The membership can require the board to produce its minutes, though, and the board may not evade that by simply not approving its minutes. A group of members has no right to demand minutes or draft minutes.

 

 

In the few draft versions that are published, what you will not see is the secretary presenting previous meeting minutes for approval.  It's not part of Old Business or New Business. 

There is a conflict between Robert's Rules and state law in regards to what owners/members are entitled to.  Our state statute dictates that minutes must be made available for all homeowners to peruse.    I found it odd that the request to access all of the minutes was denied not based upon state law but rather Robert's Rules of Order. 

[Josh Martin]

On 11/21/2023 at 6:30 AM, Jean Hamilton said:

Our condominium association Board of Directors (BOD) has published very, very few minutes of their meetings for the past 5 years and what they have sparingly published are draft minutes with the last one being for a January 2023 BOD meeting.   The BOD president himself announced on Facebook that DRAFT minutes were published to the HOA website and nearly a year later those minutes are still an unapproved draft version.  When a group of owners asked to see all of the draft minutes of other meetings, these were denied to them with the HOA’s attorney claiming that the draft minutes were “confidential” because, according to Robert’s Rules of Order, minutes are not official until they are approved.  But are they confidential?  The attorney isn't claiming that draft minutes do not exist, he's using Robert's Rules of Order to claim they are confidential.   I don’t think the HOA legal counsel is aware that the BOD has waived confidentiality of draft minutes by publishing them to the HOA owners’ portal. 

The attorney is correct that, so far as RONR is concerned, the draft minutes are not official until they are approved.

But so far as RONR is concerned, only members of the board have the right to access the board's minutes, even after they have been approved. If there is something requiring minutes to be shared with the membership, it would have to be found in the organization's rules or applicable law. You'd have to look to those rules to answer those questions.

On 11/21/2023 at 6:30 AM, Jean Hamilton said:

My understanding of RONR is that it refers to the “secretary’s draft of the minutes,” “the secretary’s draft”, and “a draft of the minutes of the preceding meeting” and there is nothing in RONR that restricts in any way posting or distributing those “secretary’s draft of the minutes,”  etc.   Further, the NC BAR Association’s “Common Interest Communities, 2^nd Edition” does not mention draft BOD meeting minutes as being confidential. 

It's correct that nothing in RONR restricts distributing minutes or draft minutes. But nothing in RONR requires distributing them either.

On 11/21/2023 at 7:03 AM, Jean Hamilton said:

There is a conflict between Robert's Rules and state law in regards to what owners/members are entitled to.  Our state statute dictates that minutes must be made available for all homeowners to peruse.    I found it odd that the request to access all of the minutes was denied not based upon state law but rather Robert's Rules of Order. 

The law in question takes precedence over Robert's Rules of Order. If there is a question concerning how this law is applicable to draft minutes, and whether there are legal concerns with the fact that the board is apparently delinquent in approving its minutes, those questions should be directed to an attorney.

[Richard Brown]

@Jean Hamiltonwhat EXACTLY do your bylaws or other rules say about the minutes and about them being made available to members? Please quote the provisions exactly without paraphrasing.  Provisions regarding the preparation and/or approval of the minutes and provisions dealing with the minutes being available to members might be in different parts of your rules. I am interested in both.  I suspect the answers to your questions may be found in your bylaws rather than RONR.

Second, even though we do not give legal advice on this forum, since you are aware of a state law on this subject please quote the provision of that state law regarding homeowner association minutes. Give us this citation, too, please. 

[Dan Honemann]

On 11/21/2023 at 8:31 AM, Richard Brown said:

Second, even though we do not give legal advice on this forum, since you are aware of a state law on this subject please quote the provision of that state law regarding homeowner association minutes. Give us this citation, too, please. 

I think this is a bad idea.  

[Gary Novosielski]

On 11/21/2023 at 7:30 AM, Jean Hamilton said:

Our condominium association Board of Directors (BOD) has published very, very few minutes of their meetings for the past 5 years and what they have sparingly published are draft minutes with the last one being for a January 2023 BOD meeting.   The BOD president himself announced on Facebook that DRAFT minutes were published to the HOA website and nearly a year later those minutes are still an unapproved draft version.  When a group of owners asked to see all of the draft minutes of other meetings, these were denied to them with the HOA’s attorney claiming that the draft minutes were “confidential” because, according to Robert’s Rules of Order, minutes are not official until they are approved.  But are they confidential?  The attorney isn't claiming that draft minutes do not exist, he's using Robert's Rules of Order to claim they are confidential.   I don’t think the HOA legal counsel is aware that the BOD has waived confidentiality of draft minutes by publishing them to the HOA owners’ portal. 

My understanding of RONR is that it refers to the “secretary’s draft of the minutes,” “the secretary’s draft”, and “a draft of the minutes of the preceding meeting” and there is nothing in RONR that restricts in any way posting or distributing those “secretary’s draft of the minutes,”  etc.   Further, the NC BAR Association’s “Common Interest Communities, 2^nd Edition” does not mention draft BOD meeting minutes as being confidential. 

I’ve done my best to read and research but not being a parliamentarian, I’m wondering if my conclusions are accurate.  I am hoping you can give some illumination to what I view as an odd interpretation of Robert’s Rules of Order. 
 

The attorney, if asked to provide a citation in RONR to support that claim of confidentiality, will be unable to do so.

Draft minutes are the secretary's draft, and RONR has no rule requiring or prohibiting their publication, except that executive session minutes are confidential. The secretary will distribute the draft to the members no later than the next meeting for approval at that meeting, but the assembly may instruct the secretary further on to whom and however else they should be distributed. 

It is recommended that whenever draft minutes are distributed, they are clearly marked as DRAFT minutes, subject to correction at the time of approval.

There is no excuse for draft minutes remaining unapproved for years, and this is a question that should be looked into further.  

However, even for the most confidential executive session minutes, the general assembly may order their production--another fact that the attorney somehow missed.  (see 49:19 quoted here)

49:19
Whether or not board minutes are protected by the secrecy
of an executive session, the assembly of the society can adopt
a motion granting such permission, or can order that the
board’s minutes be produced and read at a meeting of the
assembly, by a two-thirds vote, the vote of a majority of the
entire membership of the assembly, or a majority vote if
previous notice has been given.

Edited November 21, 2023 at 04:20 PM by Gary Novosielski

[Gary Novosielski]

On 11/21/2023 at 8:31 AM, Richard Brown said:

 I suspect the answers to your questions may be found in your bylaws rather than RONR.

I would not be surprised to find that is the case, but I'd think that the attorney would have referred to those provisions rather that relying (with dubious rationale) upon RONR.

But there I would be, thinkin' again. 

[Joshua Katz]

On 11/21/2023 at 11:17 AM, Gary Novosielski said:

The attorney, if asked to provide a citation in RONR to support that claim of confidentiality, will be unable to do so.

 

I suspect the attorney is combining RONR with state law to reach the conclusion.

On 11/21/2023 at 8:03 AM, Jean Hamilton said:

In the few draft versions that are published, what you will not see is the secretary presenting previous meeting minutes for approval.  It's not part of Old Business or New Business. 

Well, it is true that it is neither New Business not Unfinished Business. It comes up in the standard order of business as its own item. Regardless, if I may hazard reading between the lines here, it sounds like your state makes board minutes available to the membership, and the board has decided to skirt that law by not approving minutes at its meetings. Legal counsel, it sounds like, has blessed that decision, based on RONR saying that draft minutes are not minutes until approved, and state law referring to minutes. (Even then, I'm not sure "confidential" is the right word, nor that the drafts belong to the board rather than the secretary, but it amounts to the same thing in this narrow context.) That sounds unlikely to me, but I'm not your lawyer and not familiar with the relevant laws. It would take more than just glancing at the laws to figure out how this all relates. If the concern is that they are hiding major issues, you'll want to speak to outside counsel.

[Jeanne Hamilton]

On 11/21/2023 at 11:28 AM, Gary Novosielski said:

I would not be surprised to find that is the case, but I'd think that the attorney would have referred to those provisions rather that relying (with dubious rationale) upon RONR.

But there I would be, thinkin' again. 

Our bylaws are very vague on a number of issues.  The only reference to minutes is under the heading of "Officers: Powers and Duties",  Secretary is to "keep the minutes of all such meetings..."  That's it.  Nothing else.  

[Richard Brown]

@Jean Hamiltonagreeing with my colleagues, if RONR is your parliamentary, authority, the reading and approval of the minutes should be the first item of business conducted after the meeting is called to order and any opening ceremonies, if any, are conducted. It should not wait for “new business“ but should be the first item of business taken up at each meeting.

The attorney seems to be saying he and/or the board are relying on RONR to say draft minutes are not official minutes, but yet if they are not properly and regularly approving the minutes at each meeting, they are violating RONR because they should be approving the minutes of each meeting at the next meeting. 

Have you discussed this situation with your president or with the secretary or with any board members? If not, I would suggest you do so.  If yes, what have their responses been? Also, do you ever attend the board meetings? What happens when they get to what should be the first item of business, the approval of the minutes?  

[Jeanne Hamilton]

On 11/21/2023 at 11:17 AM, Gary Novosielski said:

The attorney, if asked to provide a citation in RONR to support that claim of confidentiality, will be unable to do so.

Draft minutes are the secretary's draft, and RONR has no rule requiring or prohibiting their publication, except that executive session minutes are confidential. The secretary will distribute the draft to the members no later than the next meeting for approval at that meeting, but the assembly may instruct the secretary further on to whom and however else they should be distributed. 

It is recommended that whenever draft minutes are distributed, they are clearly marked as DRAFT minutes, subject to correction at the time of approval.

There is no excuse for draft minutes remaining unapproved for years, and this is a question that should be looked into further.  

However, even for the most confidential executive session minutes, the general assembly may order their production--another fact that the attorney somehow missed.  (see 49:19 quoted here)

49:19
Whether or not board minutes are protected by the secrecy
of an executive session, the assembly of the society can adopt
a motion granting such permission, or can order that the
board’s minutes be produced and read at a meeting of the
assembly, by a two-thirds vote, the vote of a majority of the
entire membership of the assembly, or a majority vote if
previous notice has been given.

I'm a little late but thank you for this reply.   It is very helpful.