Is it ethical for a member to demand a list of fellow members of a charity, or is this a breach of confidentiality?

I’ll have to break this question into component parts.

a) Is this a breach of confidentiality?

This issue is more about law than ethics. I am not a lawyer and this article should not be taken as legal advice. You should check applicable laws and seek legal counsel if you have questions about how to apply the law.

Given that disclaimer, I will state that if the charity is incorporated it is not a breach of personal privacy, unless more information is provided about the members than is legally required. Most statutes governing corporations require that the corporation keep a member list and make it available to members on request (but read on for the details of such a request). Refusing the request, or failing to keep records in a form that made granting the request possible, would be a breach of the law.

For example, under the new Canada Not-for-Profit Corporations Act, the requirement for corporate record keeping includes:

“A members register showing: the name and residential or business address of each member; an e-mail address, if the member has consented to receiving information or documents electronically; the date on which each person named in the register became a member; the date on which each person named in the register ceased to be a member; and the class or group of membership of each member, if any.”

These records are normally kept at the registered head office. Check the provincial or other statute under which the charity is incorporated to see the exact requirements applicable to you.

While these records must be open to directors at all times, the Act also states: “If a member wishes to examine a corporation’s register of its members or to obtain a list of members…additional requirements must be met.”

The additional requirements under that Act are that the member or member’s representative must provide a Statutory Declaration that includes a legal commitment to use the records only for the purpose of:

• An effort to influence the voting of members
• Requisitioning a meeting of members
• Any other matter relating to the affairs of the corporation

In other words, it would be a breach of confidentiality to give access to member information without having the appropriate Statutory Declaration in advance, if that is what the law applicable to you requires. A member should not expect to simply walk in and be shown the records, as you may need to seek legal advice to confirm their Statutory Declaration is valid.

You need to have the records set up to exclude fields that are not to be provided, such as telephone numbers or monies owing. Any database program should make this easy, but a second person should check the file before release to avoid any breaches of personal privacy. A reasonable fee may be charged for the effort involved in making the list available in the proper format. Your governing statute may set out additional requirements or restrictions.

b) Is it ethical?

The current directors can oversee mailings to members, including what information is sent out before annual general meetings, and could use this authority to influence voters. For example, the board may recommend certain board candidates they think will best serve of the organization at that time. If some members feel the board is not acting in the best interest of the organization, they need similar access to members to present their side of the case.

There was some controversy over how this was handled during the highly charged 2010 battle for control of the Toronto Humane Society, and I did not hear the result of the legal investigation. I was not thrilled to be getting mailings from the side I wanted gone, but it was only fair that both sides had equal access to the members before the election of new directors. It would certainly have been unethical for only one side to be able to broadly influence the vote.

However, it would be highly unethical for someone to obtain a list of members on the grounds of wishing to influence a vote, and then use it to market goods or services, send spam to email accounts or any number of other possible uses that do not relate to the corporation. Legal actions might be possible if such misuse occurred. Even if your governing legislation doesn’t require it, I suggest you seek a written commitment to use the information only for purposes relating to the nonprofit.

In my opinion, it is prudent for the corporation to monitor how the information is actually used. Board members and staff who belong to the corporation can be asked to keep watch and report any inappropriate use. The privacy officer could take lead on this issue.

Summary

It is ethical and legal for certain types of member information to be made available to a member, provided the provisions of the applicable law are carefully followed. It is not ethical or legal to refuse to provide the information to someone who has followed the requirements. You may need legal advice to confirm compliance, and you need to take great care with the records to avoid inadvertent release of personal information that should not have been included.

All the above comments relate to incorporated nonprofits, whether or not they are charities. If yours is not incorporated, you may have no legal obligation to release member information, but you still have an ethical obligation to be fair. Following the spirit of the legislation described above is likely to be your best choice.

Since 1992, Jane Garthson has dedicated her consulting and training business to creating better futures for our communities and organizations through values-based leadership. She is a respected international voice on governance, strategic thinking and ethics. Jane can be reached at jane@garthsonleadership.ca.

Because nonprofit organizations are formed to do good does not mean they are always good in their own practices. Send us your ethical questions dealing with volunteers, staff, clients, donors, funders, sponsors, and more. Please identify yourself and your organization so we know the questions come from within the sector. No identifying information will appear in this column.

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Disclaimer: This article is for information purposes only. It is not intended to be legal advice. You should not act or abstain from acting based upon such information without first consulting a legal professional.

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