Executive Session Minutes. An executive session meeting is a proceeding of the board of directors. California law requires that boards keep minutes of their executive sessions. "Each corporation shall keep minutes of the proceedings of its . . . board . . ." (Corp. Code § 8320(a)(2).) Such minutes are also referenced in various places in the Davis-Stirling Act. (Civ. Code § 4950(a), § 5200(a)(8), § 5215(a)(5)(D).)
No Right to Inspect. These minutes are separate from open meeting minutes since there is no right by members to inspect them because of the confidential information contained in them related to litigation, personnel matters, disciplinary actions against members, and foreclosure actions. Even though members do not have a right to review and copy executive session minutes, boards should be aware that such minutes are discoverable in litigation.
Content of Minutes. Executive session minutes should reflect the deliberation and reasoning behind actions taken by the board in executive session. For example, if the board were to give the manager a warning, minutes should reflect what occurred. The minutes might state that "The Board expressed dissatisfaction with the manager's performance and gave the manager a written warning that failure to resolve tardiness and absenteeism would result in her dismissal. The board voted not to renew the manager's one-year contract and made the manager's employment at-will." For additional information on meeting minutes content, see "HOA Meeting Minutes."
Approval of Minutes. Executive session minutes may be approved at the board's next open meeting or executive session. However, the risk with open-meeting approvals is that the board may need to discuss corrections or revisions to the minutes which could result in the disclosure of confidences and/or waiver of attorney-client privilege. Accordingly, discussion of any changes to executive session minutes should take place in executive session.
No Distribution of Minutes. Minutes of executive sessions should NOT be distributed to the membership. (Civ. Code § 4950(a).)
Noted in Open Meeting Minutes. Even though members do not have the right to attend executive sessions, boards must keep members informed about the general nature of the business conducted in their executive sessions. The minutes of the next open board meeting must generally reflect the board's executive session:
Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership. (Civ. Code § 4935(e).)
Confidential Not Privileged. Although executive session minutes are confidential, they are not necessarily privileged. The Davis-Stirling Act does not address the issue of litigation discovery. However, it states that executive session minutes are not reviewable by the membership. In general, once litigation has been initiated, any matter may be discoverable if it is relevant to the subject matter of the litigation and not privileged. (Code Civ. Proc. § 2017.010.) That means executive session minutes may be discoverable during litigation.
Redacting. Any privileged information as well as information that is reasonably likely to compromise the privacy of an individual member of the association can be redacted. Associations may withhold or redact information that is “subject to attorney-client privilege or relating to litigation in which the association is or may become involved” (Civ. Code 5215(a)(3)); “[t]he release of the information is reasonably likely to compromise the privacy of an individual member of the association” (Civ. Code 5215(a)(4)); or contains records of money received by the association not from assessments, disciplinary actions, collection activities, or member payment plans, any person’s personal information (e.g. social security numbers, credit card numbers, bank information, etc.), or “[m]inutes and other information from executive sessions of the board” (Civ. Code 5215(a)(5)(A)-(D).)
Privacy. While the right to privacy is not absolute, courts balance the interests of each side in obtaining or protecting the information, consider the purpose of the information sought, the effect the disclosure will have on the parties, the nature of the objections, and the availability of alternative, less intrusive means for obtaining the requested information. (Hooser v. Sup. Ct. (2000), 84 Cal. App. 4th 997, 1005.) The more sensitive the nature of the personal information sought, the greater the showing of need required before disclosure will be permitted. (Hooser, 84 Cal. App. 4th at 1004.)
Recorded Meetings. Boards should not record their executive sessions (or should dispose of the recordings once minutes have been prepared). Electronic recordings may be subject to subpoena in future litigation. If the board has recorded their meetings and reasonably believes those recordings will be subpoenaed in a pending legal action, the recordings must be preserved.
Drafts Minutes. Keeping executive session minutes in draft form does not shield them from discovery. If the association is sued and the plaintiff subpoenas all documents related to executive sessions, boards must produce them, whether in draft or final form, signed or unsigned. Boards should always prepare executive session minutes with an eye to how they would sound to a jury if read aloud in open court.
Recommendation: Boards should make sure their executive session minutes are accurate and appropriate since they could, at some point, be read aloud in open court. In addition, litigation discovery is complicated and associations should work closely with their litigation counsel regarding any document requests made in a lawsuit.
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