Some shareholders of our cooperative wish to record board meetings as the  minutes do not always accurately reflect what was said during open sessions of  board meetings. One of 12 board members objected to the taping of a recent  session and stated that the shareholder needed permission (I assume, from all  board members as it was not specified) to record. There is no rule or bylaw  prohibiting the taping of meetings currently.  

 Do shareholders have the right to record meetings and would the board have the  legal right to prohibit the recording of meetings by adopting a rule against  it, citing, for example, expectation of confidentiality?  

 —Camera Shy in Manhattan

 “There exists no provision under the Business Corporation Law (BCL), or for that  matter any other law which would obligate a board of directors to record board  meetings. Similarly, there exists no such law or rule which would prohibit  boards from recording meetings,” says Eric M. Goidel, Esq. of the law firm of Borah Goldstein Altschuler Nahins & Goidel, P.C. in New York. “Accordingly, each and every board of directors of a cooperative corporation are  free to chart their own course. That being said, as an attorney representing many cooperatives’ boards of directors, I would recommend against any board of directors taping  its meetings.  

 “First, boards of directors are deliberative bodies and there is an expectation  that there will be a fair and honest exchange of ideas and opinions, ultimately  resulting in board action. While board action is sometimes the product of a  unanimous vote, often times it is the product of the vote of a mere majority of  those board members present at a meeting at which a quorum exists. Accordingly,  in connection with any decision of a board, it is possible that one less than a  majority present at the meeting may have their views overruled. To record the  exchange between board members will in many cases have a chilling effect upon  participation by board members, as board members may fear that their dissenting  opinions will be made known to their fellow shareholders. They may further fear  the prospect of more easily being made a party to any litigation over an issue.  

 “Secondly, while many portions of board meetings deal with innocuous issues,  other portions do not. Often sensitive issues are raised about shareholders and  discussions must be had concerning litigation matters. The board must respect  the privacy of shareholders and must preserve a qualified privilege that exists  when board members discuss litigation issues, which privilege will be waived if  those discussions are made public. Since not all portions of the meeting are  therefore ripe for possible recording, it then becomes a slippery slope for a  board of directors which now has adopted a policy of recording meetings to  determine what portions of a meeting will not be recorded. That decision in and  of itself may buttress claims of a plaintiff in a litigation that something  untoward may have occurred during the unrecorded portion of a board meeting.  Accordingly, it is far better to err on the side of not recording meetings and  hopefully rely upon the ability of the secretary or recording secretary to take  good notes, as well as the ability of the board of directors to modify  incorrect minutes before they are approved at the next board meeting.”