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:
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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.
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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.
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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.
Currency note
This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Open Public Meetings Act remains in force, and the holding of this opinion (that public bodies must keep reasonably comprehensible minutes of closed sessions) has continued to be applied in later case law. The Open Public Records Act (OPRA) was enacted three years after this opinion in 2001 and now governs the disclosure of closed-session minutes once their confidential basis has dissipated. Anyone working on a present-day Sunshine Law or OPRA question should also check current Government Records Council decisions and later OPMA case law.
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