November 27, 2012
Do Members Have a Right to Inspect Church Records?
Four ways a church's documents could be opened for review.
This article is taken from Richard Hammar’s Essential Guide to Liabilities and Duties for Church Boards eBook. For this eBook and other cutting-edge eBooks for church administrators, boards, and clergy, view our online catalog.
Church members have no inherent right to inspect church records. Such a right must be granted by some statute or legal document. Here are four ways this can occur:
1. Your church is incorporated. If a church is incorporated, then your state nonprofit corporation law may permit members to inspect records in some situations. Be sure that you research the correct statute, since in some states there is more than one corporation law under which a church can incorporate. Your charter often will identify the specific law under which the church was incorporated. The Model Nonprofit Corporation Act, which has been adopted in most states, gives members of an incorporated church the right to inspect corporate records for any proper purpose at any reasonable time. The Act defines records as books and records of account, minutes of business meetings, minutes of board meetings, and a listing of current members.
There are a number of things to note about this provision: it applies only to incorporated churches; it applies only to members (persons who are not members of a church are given no right of inspection under this provision); the right of inspection must be exercised at a reasonable time; and the right of inspection only applies if a member has a proper purpose in wanting to inspect church records.
2. Your church’s charter. A second legal basis for a right to inspect church records is the church’s own charter or bylaws. Occasionally, these documents will contain a provision addressing the inspection of church records, and so they should be consulted.
3. State securities law. If your church issues securities, such as bonds or promissory notes, then state securities law will give investors, whether members or not, the right to inspect the financial records of the church.
4. A subpoena. A member may gain the legal right to inspect church records with a subpoena. Members and nonmembers alike may compel the disclosure or inspection of church records as part of a lawsuit against a church if the materials to be disclosed or inspected are relevant and not privileged. Under rules that have been adopted by most states and all federal courts, any party to a lawsuit may inspect records in the possession of another party to the lawsuit, and a party has the right, by a subpoena, to compel another party to turn over books, papers, and documents. Church leaders often are confused about their duty to comply with a subpoena that asks the church to turn over certain records as part of a lawsuit.
For example, let’s say that a church is sued by a former employee who claims that she was wrongfully dismissed. The church receives a subpoena demanding that it turn over a wide range of documents pertaining to its personnel practices, employees, and finances. Does the church have to respond to such a subpoena? Does the First Amendment guaranty of religious freedom somehow insulate it from having to respond? The answer is that church records are not inherently privileged or immune from the subpoena power. Although all states consider confidential communications to be privileged when they are made to a minister acting in a professional capacity as a spiritual adviser, many courts have ruled that this privilege does not apply to church records.
There are two additional points to note about the inspection of church records. First, many church members have claimed that they have a right under the Privacy Act or the Freedom of Information Act to inspect church records. This is not the case. These laws apply to records maintained by the government, and not churches. Second, most courts have ruled that the First Amendment guaranty of religious freedom does not insulate church records from inspection by members. Churches should not assume that the First Amendment permits them to deny inspection rights given to members under state law.