When a New Jersey town council, school board, or other public body goes into closed (executive) session, do they have to take minutes of what was discussed?

Plain-English summary

In 1998, the Director of the Division of Local Government Services asked the Attorney General to clarify a recurring confusion among public bodies (town councils, school boards, county boards of freeholders, planning boards, etc.) under the Open Public Meetings Act ("Sunshine Law").

The question: do you have to keep minutes of closed (executive) sessions, or only of public sessions?

Attorney General Peter Verniero's answer was unambiguous: yes, you must keep minutes of closed sessions.

His reasoning rested on three points:

1. The plain text. N.J.S.A. 10:4-14 requires public bodies to keep "reasonably comprehensible minutes of all its meetings." There is no carve-out for closed sessions.

2. The procedure for entering closed session presupposes minutes. N.J.S.A. 10:4-13 requires a resolution stating, among other things, "as precisely as possible, the time when and circumstances under which" the closed-session discussion can be disclosed to the public. That whole framework only makes sense if minutes of the closed session are being kept and held for eventual release.

3. The Supreme Court agrees. South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 493 (1991), expressly noted that the Act requires "reasonably comprehensible minutes" of "all meetings including executive sessions."

Closed-session minutes must contain (at minimum) the time and place, members present, subjects considered, actions taken, and each member's vote. They do not have to be a verbatim transcript, but they must contain "sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination."

The opinion explicitly declines to address when closed-session minutes must be released to the public. That, the AG said, is fact-sensitive and depends on the underlying reason for the closed session, for example, attorney-client privileged discussions and personnel discussions may stay confidential longer than discussions of pending real estate negotiations.

What this means for you

If you're a municipal clerk, school board secretary, or other public-body secretary

You must take minutes during executive session. The minutes must be:

• Comprehensive enough. Per South Jersey Publishing, contain "sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination."
• At minimum: time, place, members present, subjects considered, actions taken, and the vote of each member.
• Not necessarily verbatim. A good summary is fine. You don't have to write down every comment.
• Maintained. Your body has a continuing obligation to maintain these minutes, this isn't a "burn after meeting" situation.

Practical advice:

• Keep two parallel sets of minutes, one for the public session, one for the closed session.
• Mark the closed-session minutes confidential pending review for release.
• At a future meeting, when the basis for closing the session has expired (the litigation resolved, the contract negotiated, the personnel matter completed), bring the closed-session minutes back to the body for review and possible release.
• Track the resolution under N.J.S.A. 10:4-13: the resolution should state when and under what circumstances the discussion can be disclosed.

If you're a council member, school board member, or county freeholder

You can no longer assume that what's said in executive session stays in executive session. Two implications:

1. Anything you say is going into the minutes. Even if not verbatim, the substance of the discussion is being recorded. Behave accordingly: assume those minutes may eventually be released.
2. Sloppy resolutions to enter closed session create release problems. N.J.S.A. 10:4-13 requires the resolution to state "as precisely as possible" when the discussion can be disclosed. Vague resolutions ("forever" or no statement at all) will not survive an OPRA challenge or a Sunshine Law lawsuit.

If you're a journalist or transparency advocate

This opinion is your tool for prying loose closed-session minutes:

• Confirm via OPRA request that the body is keeping closed-session minutes. If they say "no, we don't": they're violating the Act per this opinion.
• Once minutes exist, the question is whether they can be released. The opinion declines to set a general rule, so this becomes case-specific. You'll need to argue (a) the basis for closing the session has expired, and (b) the privacy/litigation/personnel concerns that justified closing have dissipated.
• South Jersey Publishing is your case for the proposition that closed-session minutes must contain enough detail to "appraise the reasonableness" of the body's determination. If a body releases minutes that are so cursory they don't allow that appraisal, that's an Act violation.

If you're an attorney advising a public body

The standing advice is now firm:

• Train your client to keep separate closed-session minutes.
• Audit existing closed-session resolutions under N.J.S.A. 10:4-13, the time-when-disclosable language is mandatory and frequently neglected.
• When a body is sued or facing an OPRA request for closed-session minutes, the legal question is release, not existence. The minutes must already exist.

The opinion is silent on retention schedules, those are governed by the Records Destruction Act and Records Retention Schedule, not by the Open Public Meetings Act. But because closed-session minutes are public records subject to potential release, treat them as you would any other public record for retention purposes.

If you're a member of the public seeking access

OPRA requests for closed-session minutes are valid. The custodian must locate them, and any redaction or denial must be specifically justified, typically by reference to one of the N.J.S.A. 10:4-12(b) closed-session permissible reasons (litigation, contract negotiation, personnel, real estate, etc.) and the continued vitality of that reason.

If you're told "we don't keep minutes of closed sessions," you have a strong case under this AG opinion that the body is violating the Open Public Meetings Act. You can file a Government Records Council complaint, an OPRA enforcement action, or a Sunshine Law action seeking to enforce the minutes-keeping obligation.

Common questions

Q: Does my town council have to take minutes during executive session?
A: Yes. N.J.S.A. 10:4-14 requires "reasonably comprehensible minutes" of "all" meetings of public bodies, including the closed-session portions. AG Formal Opinion No. 1 (1998) confirms that "all" includes closed/executive sessions.

Q: Do the closed-session minutes have to be word-for-word?
A: No. They have to be "reasonably comprehensible" and contain enough detail for the public to "understand and appraise the reasonableness of the public body's determination" (South Jersey Publishing). A good summary is fine; a verbatim transcript is not required.

Q: When does the public get to see closed-session minutes?
A: That's a case-by-case question the AG opinion specifically declines to resolve. The general rule is that minutes can stay confidential while the basis for closing the session is still active (e.g., pending litigation, ongoing contract negotiation, unresolved personnel matter). When the basis dissipates, the minutes generally become disclosable, often with redactions.

Q: What's the procedure for going into closed session?
A: N.J.S.A. 10:4-13 requires the body to adopt a resolution that (a) states "the general nature of the subject to be discussed" in private and (b) states "as precisely as possible, the time when and circumstances under which" the discussion can be disclosed to the public. A vague or boilerplate resolution is legally vulnerable.

Q: Can a public body refuse to keep closed-session minutes by claiming attorney-client privilege?
A: No. The minutes-keeping obligation is statutory and unconditional. Attorney-client privilege may be a basis to redact certain content from the minutes when they are considered for public release, but not to skip making minutes in the first place.

Q: What happens if a body doesn't keep closed-session minutes?
A: Multiple consequences. (1) Members of the public can sue under N.J.S.A. 10:4-15(b) to compel compliance with the Act. (2) Decisions made in those sessions may be voidable (N.J.S.A. 10:4-15(a)). (3) The Government Records Council and the courts may order production of whatever records do exist. (4) The body's actions may face heightened skepticism in litigation.

Q: Does this rule apply to school boards?
A: Yes. School boards are public bodies under N.J.S.A. 10:4-8. Specific statutes about board of education executive sessions (e.g., N.J.S.A. 18A:11-1) layer on top of the general Open Public Meetings Act framework, but they do not override the minutes-keeping requirement.

Q: What if minutes are kept but only as the secretary's personal notes?
A: Those notes likely become public records. Under the Open Public Meetings Act, "minutes" are an official record of the body, not a private notebook. Any document that captures the substance of the meeting in the secretary's official capacity is potentially subject to OPRA.

Background and statutory framework

The Open Public Meetings Act ("Sunshine Law"), N.J.S.A. 10:4-6 et seq., declares the policy of New Jersey: the right of the public to be present at all meetings of public bodies and to witness in full detail all phases of public-body deliberation. The Act applies broadly, to "every public body," meaning multimember bodies that perform a governmental function (counties, municipalities, boards, agencies, commissions).

The Act recognizes that some discussions cannot be public. N.J.S.A. 10:4-12(b) lists nine permissible bases for closing a portion of a meeting (executive session), including pending or anticipated litigation, contract negotiation, real-estate transactions, personnel matters, attorney-client communications, and several others.

The procedure for entering executive session under N.J.S.A. 10:4-13 requires a public-session resolution that:

• States the general nature of what will be discussed in private
• States (as precisely as possible) when and under what circumstances the discussion can be disclosed to the public

The minutes obligation in N.J.S.A. 10:4-14 reads:

Each public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the action taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].

The text uses "all its meetings" without qualification. The AG's reading, that "all" means all, including closed sessions: was already the office's "longstanding construction" of the statute. This 1998 opinion was issued to put that interpretation on formal record because confusion was apparently still circulating among local officials.

The Supreme Court in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), had also already endorsed the closed-session-minutes requirement in dicta. The 1998 opinion makes it explicit and unambiguous.

The interaction with what is now OPRA (the Open Public Records Act, enacted 2001, three years after this opinion) is straightforward: closed-session minutes are public records, but they may be exempt from disclosure under specific OPRA exemptions (advisory/consultative/deliberative material, attorney-client communications, personnel records, etc.) until the underlying basis for confidentiality dissipates. The minutes still must exist; OPRA governs only when they become disclosable.

Citations and references

New Jersey statutes:
- N.J.S.A. 10:4-12, Public meeting requirement and closed-session bases
- N.J.S.A. 10:4-13, Procedure to enter closed session
- N.J.S.A. 10:4-14, Minutes requirement
- N.J.S.A. 10:4-15: Enforcement and remedies

Key cases:
- South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), closed-session minutes must be kept and must be "reasonably comprehensible"
- Merin v. Maglaki, 126 N.J. 430 (1992), plain-language statutory construction
- Town of Morristown v. Woman's Club, 124 N.J. 605 (1991), ordinary meaning of statutory text

Source

• Original PDF: https://www.nj.gov/oag/oag/ag%20opinion%201998-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of New Jersey
DEPARTMENT OF LAW AND PUBLIC SAFETY
DIVISION OF LAW
RICHARD J. HUGHES JUSTICE COMPLEX
25 MARKET STREET
TRENTON, NJ 08625-0112

PETER VERNIERO, Attorney General
JEFFREY J. MILLER, Assistant Attorney General

October 15, 1998

Stephen B. Sasala, Acting Director
Division of Local Government Services
Department of Community Affairs
101 South Broad Street
P.O. Box 800
Trenton, New Jersey 08625-0800

Re: FORMAL OPINION NO. 1 - 1998
Minutes of Closed Sessions of Public Bodies

Dear Acting Director Sasala:

Recently, it has been brought to our attention that there may be some confusion over the requirements of the Open Public Meetings Act with regard to the keeping of minutes of closed session. The Attorney General is issuing this Formal Opinion in order to resolve any uncertainty surrounding the dictates of the law in this area.

The Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., sets standards for all public bodies for the preparation of minutes of meetings.

Each public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the action taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12]. [N.J.S.A. 10:4-14].

Construction of any statute necessarily begins with consideration of its plain language. Merin v. Maglaki, 126 N.J. 430, 434 (1992); Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123 (1987). Such language should be given its ordinary meaning, absent a legislative intent to the contrary. Town of Morristown v. Woman's Club, 124 N.J. 605, 610 (1991).

The language of N.J.S.A. 10:4-14 plainly states that a public body as defined in the Act shall keep minutes of "all its meetings." (Emphasis added). No distinction is made between those meetings or parts of meetings held in public session and those meetings or parts of meetings held in closed or executive session. Thus, it has been our longstanding construction of the Act that minutes of closed sessions must be made and maintained.

This view is confirmed by reference to N.J.S.A. 10:4-13. That statutory section dictates the procedure for a public body to go into closed session. It specifically requires that the public body first adopt a resolution (a) stating the general nature of the subject to be discussed in private, and (b) stating as precisely as possible, the time when and circumstances under which the closed session discussion can be disclosed to the public. Thus, N.J.S.A. 10:4-13 contemplates that minutes of discussions in closed session will be kept and considered for public release at some future date.

The Supreme Court of New Jersey has further confirmed the view that closed session minutes must be kept. In South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 493 (1991), the Court expressly noted that the Open Public Meetings Act specifically requires that the public body "maintain 'reasonably comprehensible minutes' of all meetings including executive sessions…." Thus, the law unambiguously requires minutes of closed or executive sessions to be made and maintained.

N.J.S.A. 10:4-14 requires that the minutes of any meeting be "reasonably comprehensible" and, at a minimum, contain information showing "the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law." The Supreme Court has construed this statutory provision as requiring "sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination." South Jersey Publishing Co., supra, 124 N.J. at 493. However, it is clear that such minutes do not need to be a verbatim transcript of the discussion.

For the above-stated reasons, we reaffirm our clear understanding that minutes of closed or executive sessions of public bodies must be made and maintained. We can express no general opinion as to when such minutes must be disclosed because that fact-sensitive issue must be determined on a case-by-case basis consistent with applicable law.

We would ask that you take whatever steps you deem appropriate to circulate this Formal Opinion to county and municipal government officials.

Thank you for your attention to this important issue.

Sincerely yours,

PETER VERNIERO
Attorney General of New Jersey

Mark J. Fleming
Assistant Attorney General