Executive Sessions and the Right to Inspect
A federal credit union (FCU) member has a right to inspect the books and records of a FCU so long as the member has a “proper purpose for obtaining the records.” While Article XVI, Section 6 of the NCUA Model Bylaws establishes a member’s right to inspect the books and records, the right to do so may create a curious question as whether this applies to all board meetings, including less formal meetings such as executive sessions, and how this requirement may create confidentiality and privacy issues relating to the potential disclosure of board member discussions. This blog will discuss these two issues in the context of executive sessions. For housekeeping, NCUA Legal Opinion Letter 06-1134 treats executive sessions as a board meeting where only directors are present.
The Keeping of Minutes During Executive Sessions
In a 2007 rule, NCUA created requirements regarding members’ inspection of FCU records to create uniform standards for all FCUs. According to section 701.3(a)(2), a group of members upon petition have the right to the “minutes of the proceedings of the credit union’s members, board of directors, and committees of directors.” The Final Rule promulgating a member’s right to inspect the credit union books, records, and minutes makes no distinction between “minutes of regular meetings of the board of directors and other types of meetings, such as so-called ‘confidential’ or ‘executive’ meetings.” This is reaffirmed in NCUA Legal Opinion Letter 06-1134, where the letter maintains “[a]n FCU must make minutes of all meetings of its board of directors available to NCUA examiners upon request.” The credit union in the same letter attempts to make a distinction between board of director meetings where the FCU officers do not attend from the meetings where the officers do attend, calling the former “executive session meetings.” NCUA does not agree with this distinction, reiterating the Federal Credit Union Act requires a FCU to take minutes at all board meetings and provide the minutes to examiners.
Although NCUA does not explicitly state executive sessions are included, the language may otherwise strongly suggest this because (A) the Federal Credit Union Act does require minutes at all meetings; and (B) the final rule requires a board to provide the minutes of board proceedings upon petition to members, making no distinction among the types of board proceeding minutes—regular, confidential, or executive—a member may request through a petition.
A tangential issue to this discussion is whether a FCU’s supervisory committee may have access to the executive session minutes or attend an executive session. In NCUA Legal Opinion Letter 93-0222, the question of whether supervisory committee members may be excluded from these executive sessions meetings is discussed. The letter notes that the board is encouraged to permit supervisory committee members to attend its meetings, but the board “may exclude from its meetings anyone who has not been duly elected to the board.” The letter mentions that open conversations may be stifled by the presence of others, recognizing that a board may have a privacy interest in holding closed-door meetings. Thus, the NCUA has stated that a board is not required to permit supervisory committee members to attend its meetings. On the other hand, NCUA noted that if members of the supervisory committee are not permitted to attend meetings, then the board should provide them with minutes of the board meetings so the supervisory committee can adequately discharge their oversight duty. The letter notes that keeping meeting minutes is, again, a requirement of the Federal Credit Union Act. An FCU has to provide minutes of executive sessions to members upon petition, examiners, and the supervisory committee.
Confidentiality of Board Activities
A member’s right to inspect conferred on all board meetings may raise issues of confidentiality and privacy. These issues were raised by several commenters in the final rule relating to a member’s ability to inspect the credit union books, records, and minutes of board proceedings. The general rule does not give members the right to inspect
any portion of an FCU’s [federal credit union] books, records, or minutes if Federal law or regulation prohibits disclosure of that portion, the portion contains nonpublic personal information as defined in [section] 716.3 [Dealing with Member Privacy]; or the portion contains information about credit union employees or officials the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The rule also does not at the time permit members to inspect information relating to senior compensation and benefits. NCUA left access to information relating to senior FCU executives subject to the employee confidentiality rule, maintaining a “member may, if they have a proper petition, inspect employee information except for information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The rule ensures FCUs have “reasonable discretion” to determine what employee information is kept confidential.
Several commenters did raise that the final rule did not protect board confidentiality. NCUA highlights several procedural and substantive protections that may limit the release of records that may harm the credit union. These protections include:
a minimum number of required petition signatures; limitations on the scope of the term “books and records of account”; the requirement that the petitioners state a proper purpose; specific confidentiality provision for information related to members and FCU employees; and the authority of the [NCUA] regional director to impose restrictions on the inspection and copying of records.
NCUA also included an added layer of security against inappropriate disclosure, prohibiting the release of any “books, records and minutes ‘the publication [of which] could cause the credit union predictable and substantial financial harm.’” Even if a member may petition for executive session minutes, there are procedural and substantive protections in place to avoid the disclosure of information that may invade an individual’s privacy and harm the FCU, its employees, and members.
If there are any additional issues or concerns, please do not hesitate to contact the NAFCU Regulatory Compliance team at email@example.com.
About the Author
Justin joined NAFCU as a regulatory compliance counsel in August 2021. As part of the Regulatory Compliance Team, he provides daily compliance assistance to member credit unions on a variety of topics.