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. The AG said only that this fact-sensitive issue must be determined on a case-by-case basis consistent with applicable law.

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 opinion addresses the duty to make and maintain closed-session minutes under the Open Public Meetings Act as understood in 1998. It expressly leaves disclosure timing to a separate, fact-specific inquiry. Check current law for a present-day request.

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: The AG opinion specifically declines to resolve when closed-session minutes must be disclosed. It says only that this fact-sensitive issue must be determined on a case-by-case basis consistent with applicable law.

Q: What's the procedure for going into closed session?
A: N.J.S.A. 10:4-13 requires the body first to adopt a resolution stating the general nature of the private discussion and, as precisely as possible, when and under what circumstances it may be disclosed.

Q: Can the body skip minutes because the discussion is private?
A: No. The AG read "all its meetings" in N.J.S.A. 10:4-14 to include closed sessions. The opinion does not decide when particular minutes may be released.

Q: Did the AG specify a remedy for missing closed-session minutes?
A: No. The opinion explains the duty to make and maintain reasonably comprehensible minutes but does not analyze enforcement or remedies for a failure to do so.

Q: Does the opinion address only town councils?
A: No. It describes a minutes duty for public bodies covered by the Open Public Meetings Act. It does not analyze separate rules for any particular kind of body.

Q: Can brief notes satisfy the minutes duty?
A: The opinion says minutes need not be a verbatim transcript, but they must be reasonably comprehensible and include the time, place, members present, subjects considered, actions taken and each member's vote.

Background and statutory framework

The opinion interprets the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., as requiring public bodies to make and maintain minutes of all meetings, including closed sessions.

N.J.S.A. 10:4-14 ties public availability of minutes to whether disclosure would be inconsistent with N.J.S.A. 10:4-12. The AG did not decide when any particular closed-session minutes must be released.

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 opinion does not announce a general release date for closed-session minutes. The AG said disclosure depends on the facts and applicable law in each case.

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

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