Who has access to what records?

For charitable trusts, basically the only people with the right of access to the trust’s records are trustees, and those who gain access by virtue of a statutory power (for instance, Charities Commission staff under s 51, Charities Act 2005).  The answer is not as obvious in the case of societies (whether charitable or otherwise).

Members of a society have the right to access information about themselves, as summarised in an earlier article (Issue 161, 3 June 2011):

Generally speaking, individuals are entitled to know what information an organisation holds about them.  However, they can only access information about themselves, not other people (which may require some editing of information disclosed), and the release of information might sometimes result in an unjustified breach of another person’s and in employment situations confidential references can usually be withheld.  Sometimes the provisions of an organisation’s constitution and the Privacy Act and Principles may need to be compared as members may have rights under the constitution to more information than might otherwise be permissible.

Wider access to general society records?

I have long held the view that society records are not generally accessible to any member who asks for them, in the absence of clear guidance in the constitution.  For instance in Society Law in New Zealand (2nd Ed, 2009, LexisNexis, at 9.2.9) I suggest that “Apart from distribution of the minutes to members entitled, no other person should have access to them other than by decision of a meeting of the body to which those minutes relate” (a proposition based on Re Londonderry’s Settlement [1965] Ch 918 (CA), a decision declining beneficiaries access to trustees’ minutes).

I have reconsidered this issue because:

  • The correspondent who prompted the article “Who can Move Motions – Revisited” (Issue 187, 29 June 2012) advanced the proposition that any member by virtue of membership should have full access to society premises, and, by implication, this proposition must apply to society records, and
  • I recently read a South Australian decision, McKay v Australian Alpaca Association (1997) 69 SASR 218, which I discuss below.

Guidance from statute?

The only statutory provisions expressly requiring the retention of society records are found in ss 22-23, Incorporated Societies Act 1908 (the Charitable Trusts Act 1957 is silent on this issue); namely keeping of a register of members and (by implication) accounting records to enable the filing of the annual financial statement.  In addition, s 34A clearly anticipates there will be “any registers, records, accounts, books, or papers that are kept by the society” available for inspection by the Registrar.

Section 14 provides that “Except when otherwise expressly provided by this Act or by the rules of a society, membership of a society shall not be deemed to confer upon the members any right, title, or interest, either legal or equitable, in the property of the society.”  Despite this negation of proprietary rights, members are generally entitled to use society property in common with other members by virtue of their contractual rights as members (Watford v Miller [1920] NZLR 837, Full Court, and Henderson v Kane and Pioneer Club [1924] NZLR 1073).

The Companies Act 1993 (ss 178 and 215-218) requires that some company records be accessible by the public and company shareholders, but company constitutions commonly restrict access to company secrets and other information the company is not bound by statute to make available for inspection.

Guidance from constitutions and Court decisions?

A constitution may provide guidance, but commonly does not.  But if member’s rights are to be restricted this must be authorised by the constitution rather than by committee-made bylaws (O’Neill v Pupuke Golf Club (Inc) [1932] NZLR 1012).

The South Australian decision, McKay v Australian Alpaca Association, held that, as the relevant statute deemed a model rule entitling members to inspect and copy society records to be incorporated into the society’s constitution, Mrs McKay was entitled to access a database of details of members’ alpacas.  The judge also said that if necessary he would have held “that there was an implied right of access by reason of the nature of the contract which exists between the members … and the Association, … the terms of the contract being the rules of the Association.”  While that conclusion may not have been essential to the decision it is consistent with the approach adopted by our Courts in Watford, Henderson and O’Neill, and suggests that my approach may be wrong.

What is the law?

Watford v Miller is the only authority that appears to support my opinion that society records are not generally accessible to any member who asks for them.  In that decision two of the five judges expressly recognised that “convention” and “good-sense” may limit the strict application of the principle that any member may use any of a club’s facilities (for instance, by not seeking to use a billiard table already being used by other members).  Such considerations were not discussed in the McKay decision.

Society has become more complex in recent years, and the Privacy Act now controls how incorporated and unincorporated societies and charities collect, use, disclose, store and give access to “personal information.”  Under Privacy Principle 5, that personal information must be “protected, by such security safeguards as it is reasonable in the circumstances to take” from misuse, including loss and “access, use, modification, or disclosure, except with the authority of the agency that holds the information.”  In practical terms, most committee records and minutes will refer to personal information about members and providing access to any member who seeks access would create something of a nightmare because of the need to protect other members’ privacy.

“Convention,” “good-sense” and Privacy Act considerations may prevail over implied contractual rights, or perhaps before the issue has to be decided by a New Zealand Court we will have clearer guidance in a new statute replacing the Incorporated Societies Act and (I hope) the Charitable Trusts Act.

This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.