Freedom of Information (FOI) legislation (referred to as sunshine law in some jurisdictions) presents a major challenge to minute takers: How much should be recorded in minutes, given that they are public documents and are subject to public access requests? Moreover, how much of the discussion should be recorded in a closed meeting, where, despite the fact that the minutes are presumably confidential, a court could subpoenae them anyway?

The FOI dilemma goes like this: If you record too much detail in minutes, you could be exposing your organization to risk or exposing individuals to personal embarrassment. On the other hand, if you record too little or focus only on the decisions made, your minutes will offer very little historical value, when many years later people will try to understand why certain decisions were made.

Where should the happy medium be? Here are a few tips:

• Don't record conversations ("who said what") and avoid attributing remarks to individuals, except when clearly needed (e.g.: when a committee reports, you may need to identify the individual who reported on its behalf and capture the essence of what he or she said). Generally it is better to avoid verbatim (word for word) accounts of what was said. Instead, capture the key ideas and concepts that led your group to its decisions.



• Delete names from minutes where they are not significant. For example, remove names of movers and seconders from minutes. Instead of "Councilor Jones moved and Councilor Rex seconded that ____", record: "it was moved and seconded that___." The less direct attribution of comments or actions to individuals the better. This will be consistent with the principle that the focus of minutes should be collective, not personal.



• Delete extraneous details, especially in a closed meeting. Many organizations record no discussion summaries in closed meetings and focus only on decisions that were made. If you record discussion summaries in closed meetings at all, keep them at a minimal level. Consider any potential exposure to risk that could occur if anything recorded became public or came before a court of law. If in doubt as to how much should be recorded, speak to your legal counsel.
  
  
• To address the fear that documents could be FOI'ed differently, consider what reasons your Board may be giving to citizens to be suspicious and pursue adversarial actions against it (such as demanding access to a confidential document). Work hard on building trust and respect towards your Board, be as transparent and accountable as you can possibly be, and do not schedule items on a closed meeting agenda unless they absolutely belong there. Operating with integrity and honesty and following the spirit of FOI legislation will be the best way to prevent FOI from becoming a threatening, stifling and constraining legislation.