Recordings of Meetings and How to Properly Redact Minutes Upon Receipt of a Records Request.
In two recent rulings the CAT determined if a corporation chooses to record the AGM, which is commonly done by firms hosting virtual or hybrid meetings, the recording is a record that the corporation is required to maintain and produce upon appropriate, written request.
These decisions were somewhat of a surprise as recordings have historically been treated like draft minutes. Although they were used to create records, they were not official records themselves.
In contrast, the minutes recorded by a minute-taker on their own device, in attendance at the meeting for purposes of producing the minutes, are not records of the corporation and do not need to be maintained once the minutes are produced.
If a corporation chooses to have its virtual meeting host record the AGM, things get more complicated. In a recent newsletter, the lawyers at Shibley Righton suggested that corporations must retain the recordings it makes at least until the minutes are prepared. This can be done by passing a resolution setting the retention period for recordings of owners’ meetings at a board meeting, which should be captured in the minutes available to owners. This retention period would typically be 90 days – enough time to produce the minutes.
In the recent CAT decisions, they found that the owners wanted the recordings for an improper purpose. Accordingly, the requests were denied. However, it’s not clear what purposes the CAT considers proper. Therefore, upon receiving a request for recordings made by the corporation through its virtual meeting host, it would be wise to consult with legal counsel on the best way to determine and assess the owner’s reasons for requesting the records.
In another case the CAT concluded that having separate regular minutes and in camera minutes is not the best practice (although not a breach of the Act). Instead, corporations should keep one full set of minutes and then redact them as necessary when a valid request for minutes is received. Any redactions should be done carefully to ensure that the redacted information is adequately protected. In addition, redactions must be accompanied by a separate document setting out the reason for each individual redaction with a reference to the specific exemption articulated in the Act or regulations.
- Recordings of AGMs will be treated as records of the corporation if the corporation arranges for the meeting to be recorded (i.e., recordings of a virtual or hybrid meeting).
- Recordings made by a minute-taker for later transcription into minutes are the property of the minute-taker and are not considered records of the corporation.
- Boards should pass a resolution at a board meeting that defines the retention period for recordings made by the corporation. That retention period should be long enough for the minutes to be produced – typically 90 days.
- The best practice for keeping minutes is to keep one unredacted set for any given meeting. Redaction should only occur when a request for minutes is received.
- Redactions must be accompanied by a separate document setting out the reason for each individual redaction with a reference to the specific exemption articulated in the Act or regulations.