All above board - Latest tips and tricks for board minutes and board papers

As the landscape of corporate governance continues to evolve, so too do the expectations placed on company secretaries and directors in managing board minutes and board papers. From the routine use of tablets and laptops for drafting minutes and annotating board papers, to the deployment of advanced artificial intelligence (AI) platforms to automatically transcribe board minutes, technology is fundamentally reshaping how board information is prepared, recorded and retained. These developments offer opportunities for efficiency, accuracy and transparency, but also introduce new challenges and risks that directors and company secretaries should be aware of.

The recent update to the 2019 Joint Opinion on Minutes of directors’ meetings by Dominique Hogan-Doran SC and Douglas Gration highlights the “explosion” in the availability and use of AI in this area, and the growing complexity in managing this documentation.[1]

In this article, we explore the latest trends, practical insights and key considerations for managing board minutes and board papers in light of evolving digital tools and AI.  

Embracing AI and technology in the boardroom

Integrating AI and digital tools is now a baseline expectation for many organisations, driven by the demands of customers, clients, stakeholders and the broader market. As technology continues to evolve, its impact is being felt not only across an organisation’s daily operations but within boardrooms too.

For some time, boards have leveraged a range of digital tools, including tablets and laptops, to view and annotate board papers. Additionally, technology is being used to store board documents, whether via cloud platforms, USB drives or external hard drives.

Since the pandemic, platforms such as Microsoft Teams, Zoom and Google Meet have become commonplace in board operations, offering features that facilitate virtual meetings and real-time collaboration. The more recent introduction of tools like Microsoft Copilot and other AI-powered assistants further extends digital capabilities, allowing for the automatic recording of meetings, generation of transcripts and extraction of action items. In some cases, organisations are developing bespoke digital solutions tailored to their unique governance and compliance requirements.

Digital tools can offer a range of advantages in the preparation and ongoing management of board minutes and board papers. For example, they can enhance accessibility, reduce the administrative burden on company secretaries and support greater accuracy and transparency in record keeping.

Navigating the risks

Despite the potential benefits, the use of AI and technology in boardrooms comes with novel challenges that require careful management. The risks include:

• Data security, privacy and confidentiality: electronic records must be protected with strong access controls and cybersecurity measures. The recording and storage of digital board minutes, board papers or AI-generated content, whether on internal systems or external platforms, should be carefully considered in light of security, privacy and other considerations, including where third-party technology, data storage facilities or AI providers are used.
• Accuracy and reliability: AI tools, while powerful, are not infallible. They can misinterpret speech, particularly in the presence of accents, rapid dialogue or overlapping conversations. There is also the risk of ‘hallucinations’, where AI fabricates information to fill gaps, and a transcript cannot convey the tone, emphasis and other subtleties in how things are said. In circumstances where directors’ notes, board minutes and other materials relating to boardroom proceedings may be discoverable in court proceedings or subject to compulsory production to regulators, it is important that all users of AI are aware of these risks and have controls in place to mitigate or manage the risks.
• Over-documentation: Board minutes should provide an accurate record of business conducted, but not a verbatim transcript. AI-produced transcripts and recordings might capture information that should generally be excluded from minutes, such as personal opinions, admissions of liability and privileged information. Such content may prove unhelpful in subsequent proceedings, for example where it is inconsistent with the signed board minutes, is ambiguous or gives rise to a waiver of privilege. The knowledge that a meeting is being recorded or transcribed can also have a ‘chilling’ effect on boardrooms, altering participants’ behaviour and stifling open and candid discussion.

Establishing robust governance and oversight

To effectively manage the risks associated with AI in the boardroom, boards should consider and record the extent to which they will utilise AI. A consistent approach generally minimises the potential risks for the company and individual directors. Key questions and practical tips companies should ask themselves include:

• Compliance with legal and regulatory standards: Are our retention and storage practices for board minutes and board papers - both physical and digital - compliant with current legal and regulatory requirements? Can electronic records be reproduced in written form at any time and are they readily accessible for future reference?
• Internal policies on AI and digital tools: Do we have clearly defined internal policies governing the use of AI and digital tools in the boardroom? Are there established policies or guidelines to support directors in relation to notetaking, and company secretarial teams in relation to preparation and storage of minutes?
• Document retention and destruction policies: Are our document retention and destruction policies current and reflective of the latest legal and technological developments? How frequently do we review them to address potential risks associated with cloud storage, data backup and evolving regulatory requirements? Are these policies consistently applied across all forms of board documents including draft minutes and papers, personal notes and annotations? Do the data destruction policies operate so that there is one ‘source of truth’, which are the Board minutes and extraneous material (including annotations and notes made by directors) have been destroyed at the appropriate time?
• Ongoing training and support for directors: Are our directors receiving adequate support in relation to the use of new technologies and AI in the boardroom? What ongoing support mechanisms are in place to ensure that all members are proficient in using new tools and are aware of emerging risks?
• Data security and confidentiality: Are robust data security measures in place to protect sensitive board information, particularly when using cloud-based or external AI platforms?
• Privilege and Privacy: Prohibit the use of open-source AI platforms by directors and others to review board papers and prepare minutes. Otherwise there is a real risk of waiving legal professional privilege in privileged documents, and disclosing data that is subject to privacy obligations.

As digital tools and AI continue to become embedded in boardroom practice, directors and company secretaries are tasked with navigating an increasingly complex landscape of legal, technological and governance risks. Realising the advantages of digital tools and AI in the boardroom requires a clear understanding of the limits and risks, and a considered and consistent approach.