Ready, Set, Action: Are In-Camera Minutes a Record of the Condo?

Many condominiums have private sessions during board meetings where they discuss more sensitive issues involving unit owners, employees, or litigation. These are often referred to as "in-camera" sessions. Owners, apart from the directors and officers, would not be eligible to attend these portions of the meetings. Are owners entitled to access the minutes from in-camera sessions of the meetings of the board? A recent CAT decision answers the question. A unit owner filed an application with the CAT because he felt the condominium refused his request for records without a reasonable excuse. The condominium denied the allegations. The owner wanted access to minutes from in-camera meetings of the board of directors, management reports and attachments to the reports, and the directors' notes from informal meetings. (Note: there are some interesting procedural issues discussed that might interest the law geeks reading this. It will likely be boring to the majority of people so I haven't discussed it here). The CAT member reviewed the relevant sections of the Act first. At paragraph 20:

The Act does not contemplate or define the term “in-camera”. The term in-camera was used in this proceeding to generally refer to parts of a Board meeting that might take place on a confidential basis.

The CAT member then reviewed section 55 of the Act, which describes the condominium's obligation to keep adequate records and the right of owners to examine or obtain copies of records. The member also reviewed the exceptions to the right of owners to access records, which exceptions include records related to specific units or owners. An owner may examine records related to their own unit, but not others.

The CAT member found that the in-camera minutes did not relate to the owner requesting to examine them. At paragraph 24:

The Witness testified that in-camera sessions at Board meetings which she has attended “have been for the purpose of candidly discussing such items as: (i) specific unit and owners; (ii) on site staff or contractors including security, property managements, etc.; (iii) actual or contemplated litigation involving the Corporation and; (iv) reports from professional such as lawyers and communications to this effect”. These may be appropriate topics for the Board to treat confidentially, to the extent that they may come within the explicit exemptions for access to records set out in subsection 55(4) of the Act.

The condominium's witness explained that in-camera sessions were used to discuss matters about units and owners to protect the identities of the owners. The CAT member accepted that redacting the minutes would not be sufficient to protect the identity of the owners since there were only 42 units.

One of the more interesting parts of the decision is the discussion surrounding redaction of the in-camera minutes.  The CAT member appears to suggest that the amount of redaction required may depend on the person requesting the record. Put another way, it may be necessary to redact more of the record in some instances than would be the case for another owner requesting the same record. In the present case, the owner was a former director and was "very well informed" of events in the building. He was also "well acquainted" with the residents.

The condominium also raised a concern about providing in-camera minutes to the owner as it would "open further requests and inquiries" from the owner. The CAT member found that this was not an acceptable ground to refuse a record request. The member accepted the condominium's argument that the level of redaction required would leave nothing more than 'headings and dates and black lines.'  Accordingly, the condominium was not ordered to produce the in-camera minutes. Management Reports & Other Documents

The owner also requested access to management reports presented to the board of directors at the meetings. The condominium argued that they were not records of the condominium, and thus are not eligible for examination. The owner argued that the list of records that must be maintained by the condominium was not exhaustive.

The CAT member found that the management reports were drafts or notes and "only become a record of the corporation to the extent that they are accepted by the Board and reflected in the minutes of a Board meeting." The member opined that it might be helpful if the Board include the agenda and other items approved in the minutes. (Note: there is a CAT decision that indicates management reports may be a record of the condominium so watch out for a possible inconsistency. Best to seek legal advice before refusing an owner's request to access a management report).

The owner also wanted access to the notes made by directors at informal meetings. The CAT member found that the owner was entitled to the notes. The condominium previously agreed to include the notes with the minutes. This fact appears to have been persuasive to the CAT member. It is likely that the notes of directors would not ordinarily be considered records of the condominium, unless the condominium agreed to include them in the minutes or otherwise consider them a record of the condominium. Penalty & Costs The owner also asked for the CAT to award the maximum penalty ($5,000) and its costs ($40,000). The CAT member found no basis for either request and denied them both. The condominium sought costs of $14,000, but the CAT member found no basis for that request and denied it as well.

As always, I'd love to hear your thoughts on this one. Feel free to comment below or share this post with your followers.