Anyone who has sat on a Board and many members of the general public have heard about “in camera” sessions during Board Meetings. These sessions are typically used to discuss confidential matters such as executive or employee remuneration, ongoing and potential litigation and other confidential matters. It is generally understood that items discussed in camera are confidential. But are there limits on that confidentiality?
For most organizations, the general principal is that the information discussed in camera is confidential and only to be further discussed outside the meeting with those already in the room. The content of the confidential discussions are generally not recorded in the Minutes of the Board Meeting. However, there are limits on this confidentiality.
The Supreme Court of Canada has held that Board Members can be required to testify about the discussions held in in-camera sessions in court and before administrative tribunals. This also means that the content of in camera discussions will be required to be shared by opposing parties in litigation. The discussions held in camera are not somehow shielded from legal risk and liability.
For this reason, we advise organizations that they should take notes of what was discussed during in camera meetings. These notes should be kept separate from the general meeting Minutes and they should be stored securely. Due to the important nature of some of the discussions and decisions made in camera, these notes can become extraordinarily important in the event of litigation.
The key take away: in camera meetings are not shielded by privilege or protected from disclosure to the courts or other parties in litigation. Govern your organization accordingly.