Key point 6-03.1 . Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.
A New York court ruled that a church member had the legal authority to inspect church records despite the pastor’s refusal to allow him to do so.
Most church leaders are not sure how to respond when a member asks to inspect church records. Do members have a legal right to have access to church records? If so, under what conditions? Are there exceptions? These are very relevant and important questions for which church leaders should have answers. A recent New York case addresses these issues and provides helpful guidance.
A church member asked for permission to inspect various church records. His request was denied on the ground that his membership had been suspended because of his failure to pay tithes and "take the Lord's Supper." The member sued, claiming that state nonprofit corporation law gave him a legal right to have access to the church's records. The New York nonprofit corporation law contains the following language regarding the inspection of records:
Except as otherwise provided herein, every corporation shall keep, at the office of the corporation, correct and complete books and records of account and minutes of the proceedings of its members, board and executive committee, if any, and shall keep at such office or at the office of its transfer agent or registrar in this state, a list or record containing the names and addresses of all members, the class or classes of membership or capital certificates and the number of capital certificates held by each and the dates when they respectively became the holders of record thereof. A corporation may keep its books and records of account in an office of the corporation without the state, as specified in its certificate of incorporation. Any of the foregoing books, minutes and records may be in written form or in any other form capable of being converted into written form within a reasonable time. Any person who shall have been a member of record of a corporation for at least six months immediately preceding his demand … upon at least five days written demand shall have the right to examine in person or by agent or attorney, during usual business hours, its minutes of the proceedings of its members and list or record of members and to make extracts therefrom.
A trial court ruled that the member had a legal right, on the basis of the nonprofit corporation law, to inspect church records from 1997 to the present. A state appeals court agreed. It acknowledged that only "members" had a legal right to inspect records, but it concluded that the member had not lost his status as a member of the church. It observed,
Although his "fellowship" may have been "suspended" by his failure to tithe and to take "the Lord's Supper," the bylaws of the church do not define either "fellowship" or the effect of suspension. Furthermore, the bylaws clearly set out a different criteria for expulsion of one's membership, which affords a member an opportunity to resign and a hearing, neither of which has occurred. In fact, it is uncontested that no process of expulsion has occurred. This is not a case where a member is seeking to force the church to perform some act against its will or seeking to define membership in a way opposed by the church. The member is simply trying to enforce his secular rights as a member, using the church's own criteria of membership and the pastor's own admission that he has not been expelled as a member. Nor are the church's first amendment rights violated by the inspection of the records, as the questions involved here are not concerned with internal ecclesiastical or religious issues, but purely secular ones.
The court also pointed out that the church board had voted to allow the member to inspect the church's records, and therefore it was doubtful that the pastor had the legal authority to contest this issue in court.
The court noted that state nonprofit corporation law only permits inspection for the prior fiscal year. However, it pointed out that the pastor had admitted that it was the church's policy to allow broader inspection to members. As a result, "the court properly recognized this policy by allowing inspection of the years 1997 to present."
What this means for churches:
This case provides church leaders with some useful insights into the meaning of state nonprofit corporation laws that give members a limited right to inspect corporate records. Consider the following:
- The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
- The right of inspection only extends to members.
- The right of inspection only extends to those records specified in the statute creating the right.
- Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
- Members may lose the right to inspect church records if they are dismissed or suspended from membership pursuant to procedures specified in the church's bylaws or other governing document. However, as the court concluded in this case, members cannot lose their right to inspect church records by being "suspended" in a manner not authorized by the bylaws.
- As this case illustrates, state nonprofit corporation law may limit the right of inspection to records created during the current or previous year. Be alert to any such limitation under your state's law.
- Any decision to withhold documents from a member should be made with the advice of an attorney.
Watson v. The Manhattan Holy Bible Tabernacle, 732 N.Y.S.2d 405 (2001).