Maintaining Board and Organizational Confidentiality

Nothing could be more frustrating!  Supposedly confidential information discussed at a Board meeting has been leaked to staff, members or others.  The organization struggles to maintain confidentiality while some individuals feel it is their duty to “inform” members and others about what the Board and organization is doing.

This better practice addresses two issues related to protecting Board and organizational confidentiality:

• Is there a need for it to be confidential?  If everything is considered confidential, then respect for confidentiality will decline. Also, the reason confidentiality is required should be explained.

• Do Board members and staff know their responsibilities regarding confidentiality?

Need for confidentiality

Associations and non-profits Board members often acquire, maintain, and use confidential information such as: information generated in self-regulatory programs (e.g. through education, standards, certification, or codes); confidential member economic and other information collected in surveys or reporting programs; legal counsel opinions; employment and compensation information; trade secrets arising from association undertakings or those of partners or suppliers; and deliberations from in-camera sessions or other confidential discussions of the Board.  The personal information of employees, members and donors is also increasingly protected by privacy legislation, and must be protected by the organization.

Confidentiality may be necessary for the best interests of the association or because disclosure of the information could cause injury to individuals or other organizations. The need for confidentiality exists when information is designated as “confidential” (e.g. stamped or announced). It also applies where the need for confidentiality is obvious or evident (nature of the material or context of the situation), or required by applicable law, even though the information is not specifically designated as confidential.

Responsibilities to Maintain Confidentiality

It is not up to the individual to determine what is and is not confidential.  If the organization considers and treats information as confidential, then Board members, staff and volunteers must respect that need for confidentiality. As well, individuals are not permitted to overrule or disregard their duty to maintain confidentiality.

Board members, volunteers and staff are legally required to keep certain association information confidential. This legal obligation exists even though Board members and volunteers may not be paid, and employees may not have signed any contracts or other documents related to confidentiality.  Board members have been placed in a position of trust, and it is their fiduciary responsibility to honor the association’s need to keep certain information confidential.

A Board member, volunteer or employee, who discloses confidential information, could  impose liability on the association if the organization was legally required to maintain confidentiality. The Board member, volunteer or employee may also face personal liability as a result of disclosing confidential information.

Tips for Maintaining Confidentiality

• Train and educate Board members, staff and volunteers who have access to confidential information about their responsibilities

• Carefully preserve the confidentiality of any information that is designated “confidential” or appears to be of a confidential nature. For example, the federal privacy commissioner provides useful tips on how to handle personal information to keep it private, and many of them are applicable to other forms of confidential information.

• While the “need to know” approach may seem to be overkill, it is a good practice to restrict confidential information to those who need it.  Do not disclose confidential information (even within the organization) to anyone who does not need to have the information.

• Set policies regarding confidentiality so the expectations and responsibilities are defined, and the designation of confidentiality is not used to needlessly restrict membership rights or for political purposes.

• Always designate information as “confidential” if there is an expectation that it be maintained as such by Board members, staff or volunteers.

• Encourage Board members, staff or volunteers who are uncertain whether information is confidential, or how the organization sets confidentiality, to ask questions before disclosing anything.

The author is not a lawyer.  As well, the information in this article is general in nature, and requirements and circumstances may vary according to an organization’s constating documents or its geographic jurisdiction. Therefore, if this article raises red flags about what is happening in your organization, then you would be well-advised to consult your legal counsel.

The practices described in this area are described as Better Practices for a very good reason. We have a great deal of difficulty with the term best practices used in any other context than to refer to the results of benchmarking exercises involving real and relevant organizations with tangible results.  We offer Better Practices related to areas where we feel that change is needed in associations. The Better Practices are intended to provoke thought, and to encourage organizations to think about what they are doing and how they are doing it.

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