Key Takeaways

  • State consent laws play a crucial role in whether board meetings can be recorded.
  • Organizations should consult their bylaws and establish clear recording policies if not already present.
  • Recording can support accuracy in meeting minutes but must not replace written summaries.
  • Recordings raise privacy, security, and litigation concerns.
  • Whether a member or non-member can record depends on governance documents and board discretion.
  • Best practices include limiting access, setting retention rules, and notifying attendees.

Recording board of directors meetings is not a requirement, although company owners may request it. If you decide to record your board meetings, you should check the rules in your state to make sure that recording is legal.

Legality of Recording Meetings

In certain states, including California, recording a conversation without the consent of both parties is illegal. This means that if your board of directors meeting takes place in one of these states, you would need to get the consent of every director before recording the meeting. If your board meeting is an open meeting, however, you should be able to record the meeting, as there is no expectation of confidentiality.

A legitimate argument can be made that a board of directors has the power to decide how a meeting of the board will take place. Basically, this means that the board has the authority to decide if recording meetings will be allowed. If the board decides not to allow recordings, there is virtually no point in arguing the decision, especially since the Open Meeting Act doesn't override a board of directors' authority. It is possible, however, that your company's governing documents allow recordings of meetings.

In most cases, your company bylaws will not mention recording meetings. If your bylaws do discuss recordings, it's likely that they are only allowed at the discretion of your directors. If there is no mention of recordings in your bylaws, you may want to update these rules to allow for this practice. Adopting rules about recording board of directors meetings can help prevent conflicts between your board and company owners.

When writing rules about recording board meetings, there are a few factors that you should consider:

  • Who will be doing the recording?
  • When will the recording take place?
  • Is there a purpose to the recording other than documentation?

Generally, giving the board of directors the power to approve or deny recordings is a good idea. Granting the board this authority will make sure that recordings are only beneficial and not open to abuse. In many companies, the board of directors meetings is recorded, primarily to make preparing the minutes of the meetings easier. If your organization does decide to record meetings of your board of directors, there are some policies that you should consider putting in place.

For instance, every board member should be aware that these recordings will take place. It's also a good idea to institute a policy for getting rid of recordings after approval of the meeting minutes. You should also consider instituting a rule that any board member can request that the recording be stopped. For instance, board members may want to briefly stop a recording while discussing a sensitive manner.

If your company has voting members, you will likely be required to allow them to listen to these recordings if they request. Board members must also be allowed to listen to these recordings. Recordings may be included in your company's records.

The reason many corporations decide not to record board meetings is that most of the subject matter discussed during these meetings is confidential. If you do decide to record your meetings, and your board talks about issues private to your corporation, it's a good idea to destroy these recordings as soon as possible.

Using Recordings for Meeting Minutes

Recording meetings can be a practical aid in drafting accurate minutes, but recordings should not substitute for written minutes themselves. Most states and governance bodies expect minutes to be a written summary, not a verbatim transcript.

Legal and practical issues to consider include:

  • Minutes vs. Recordings: Official minutes should summarize motions, votes, and decisions. Recordings may be used by the secretary as a reference but should not become the official record.
  • Retention Guidelines: If recordings are used during minute preparation, many boards adopt a policy to delete them once the minutes are approved, reducing liability and preserving privacy.
  • Discovery Risks: Audio and video files can be discoverable in litigation, so boards should weigh the value of recordings against the potential exposure.

Boards may choose to formally prohibit recordings from being used as minutes and instead permit them only as an optional preparatory tool.

Member vs. Non-Member Recordings

Whether someone is permitted to record a board meeting often hinges on their role. Members of the organization or shareholders may have a legitimate interest in transparency. However, even members do not automatically have the right to record unless it's granted by statute, the organization's bylaws, or board policy.

Non-members—such as guests, contractors, or the public—generally have no inherent right to record unless the meeting is open to the public and local laws allow such recordings. Boards can, and often do, restrict or prohibit non-member recordings to preserve confidentiality and maintain orderly proceedings.

To prevent conflict, the board should clarify who may record, under what conditions, and what happens to the recording afterward.

Drawbacks to Recording Meetings

When a company owner brings recording equipment to a board meeting, they may be trying to gather evidence for a lawsuit. They may also be planning to use these recordings to intimidate board members. In some cases, the owner will also bring a lawyer with them in addition to recording a meeting.

If an owner is recording board of directors meetings for the purpose of a lawsuit, it can discourage board members from participating in the meeting. They may not feel comfortable discussing important issues out of fear they'll be involved in the litigation. So, in some cases, recording board meetings can suppress the free speech of board members.

Additionally, even though there may not be an expectation of privacy when attending a board meeting, attendees do expect that what they say in the meeting won't be released to the public. To protect the privacy of board members, many companies prohibit recording devices in meetings.

Privacy and Security Considerations

Digital recordings inherently carry privacy risks. Board discussions often involve financials, personnel issues, and strategic planning—topics that must remain confidential. A compromised recording could expose the organization to reputational damage, compliance issues, or legal liability.

To mitigate these risks:

  • Limit access to recordings to specific officers or the board secretary.
  • Store files securely using encrypted storage.
  • Use access logs to track who listens to recordings.
  • Regularly review and audit retention policies.

In highly sensitive environments, it may be best to avoid recordings entirely and rely on traditional written minutes.

Best Practices for Recording Board Meetings

To ensure recordings are conducted responsibly and legally, boards should implement comprehensive policies that address:

  • Consent and Notice: All participants should be informed beforehand that a recording will take place, with an opportunity to raise objections.
  • Authorization: Require approval from the board before any recording occurs.
  • Purpose: Clarify whether the recording is for minute preparation, compliance, or archival purposes.
  • Storage and Retention: Define where recordings will be stored, how long they will be kept, and who has access.
  • Editing and Use: Prohibit editing recordings to avoid misrepresentation and establish rules for referencing recordings in future board actions.
  • Confidential Sessions: Prohibit recording of executive or closed sessions unless explicitly approved due to the sensitive nature of discussions.

Following these best practices can help avoid legal exposure while reinforcing transparency and governance standards.

Frequently Asked Questions

  1. Can board meetings be recorded without permission?
    No. In many states, recording without consent is illegal. Always verify local laws and obtain approval from the board or all participants.
  2. Can recordings replace board meeting minutes?
    No. Recordings can assist in preparing minutes, but written minutes remain the official legal record.
  3. Are recordings of executive sessions allowed?
    Generally not. Executive sessions involve confidential matters, and recording them is typically restricted or prohibited.
  4. Who can access board meeting recordings?
    Access is usually limited to board members or officers responsible for maintaining records, unless otherwise stated in the bylaws or board policy.
  5. What should a recording policy include?
    It should outline who may record, under what circumstances, how long recordings are kept, access rules, and destruction procedures.

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