c. Minutes

Governmental bodies are not required to keep minutes of executive sessions. Ala. Code § 36-25A-4.

If a meeting or portion of a meeting is properly closed under the Alabama Open Meetings Act, any minutes of such meeting would likely be deemed properly closed as well, unless an argument can be made that the passage of time and/or events nullifies the continued validity of the reasons for closure of the meeting.

The state Open Meetings Act contains no requirement that minutes be kept of executive sessions, or any other portions, or public meetings generally, but some other provisions of laws or local ordinances do require recording of executive sessions. Note that the Alaska Supreme Court has held that documents not otherwise confidential are not exempt from disclosure simply because they were discussed or generated in executive session. Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 590 (Alaska 1990).

While minutes of public meetings would generally be considered public record, the converse might presumptively be true of minutes of executive sessions. The issue is not dealt with in the state Open Meetings Act, but see the treatment of this issue, directing that electronic recordings be kept of executive sessions of the Anchorage Municipal Assembly and disclosed under certain specified circumstances.

Written minutes or a recording of the session are required for all executive sessions by public bodies. A.R.S. § 38-431.01(B).  But these minutes, as well as any discussions, are confidential subject to specific exemptions.  A.R.S. § 38-431.03(B).

Executive session minutes must include the following:

1. The date, time and place of the meeting.
2. The members of the public body recorded as either present or absent.
3. A general description of the matters considered.
4. An accurate description of all legal actions proposed, discussed or taken, and the names of members who propose each motion. The minutes shall also include the names of the persons, as given, making statements or presenting material to the public body and a reference to the legal action about which they made statements or presented material.

A.R.S. § 38-431.01(B).  In addition, the minutes must provide “an accurate description of all instructions given” to its attorneys or representatives and “such other matters as may be deemed appropriate by the public body.”  A.R.S. § 38-431.01(C).

Minutes of executive sessions are kept confidential subject to specific exceptions.  A.R.S. § 38-431.03(B).  In some instances, however, “the interest [of] full disclosure warrants the revelation of information pertinent to [a] decision,” even if the information comes from the proceedings of an executive session or might otherwise be confidential.  Shelby Sch., 192 Ariz. at 168, 962 P.2d at 242.

The public body can disclose the minutes to members of the public body who met in the session, the officers, appointees, or employees who were the subject of consideration, the auditor general, and the Attorney General or county attorney who are investigating alleged violations of the OML.  A.R.S. § 38-431.03(B); see Picture Rocks Fire Dist. v. Updike, 145 Ariz. 79, 81, 699 P.2d 1310, 1312 (Ct. App. 1985) (explaining that executive session minutes may be given to a member of the public body who was absent from the executive session).  The disclosure of executive session information to any of these parties does not waive any attorney-client privilege.  A.R.S. § 38-431.03(F).

In an action challenging an executive session’s validity, “[a] court may review in camera the minutes of the executive session, and if the court in its discretion determines that the minutes are relevant and that justice so demands, the court may disclose to the parties or admit in evidence part or all of the minutes.”  A.R.S. § 38-431.07(C).  “Any court that reviews executive session information shall take appropriate action to protect privileged information.”  A.R.S. § 38-431.03(F).

Nothing in the FOIA requires a governing body to keep minutes of its proceedings, though several other statutes place that duty upon particular entities. E.g., Ark. Code Ann. §§ 14-14-903(a) (county quorum court), 17-82-205(e) (State Board of Dental Examiners). The minutes must reflect the vote and the decision reached. Ark. Op. Att’y Gen. No. 87-284. If minutes or similar records are kept, they are open to the public. Ark. Op. Att’y Gen. Nos. 87-284, 86-316.

Under the Bagley-Keene Act, a state body shall designate a clerk or other officer or employee of the state body who shall attend closed sessions and record in a minute book, all topics discussed and decisions made at the meeting. Cal. Gov't Code § 11126.1. The minute book may consist of a recording of the closed session. Id. Minute of closed sessions are not public records subject to disclosure under the California Public Records Act. Id.

Under the Brown Act, the legislative body does not have to keep minutes of a closed session but may designate a clerk pursuant to the same guidelines as above. Cal. Gov't Code § 54957.2. Minute of closed sessions are not public records subject to disclosure under the California Public Records Act. Id. Furthermore, members of a legislative body do not have to disclose their personal recollections of a closed session. Kleitman v. Superior Court (Wesley), 74 Cal. App. 4th 324, 334, 87 Cal. Rptr. 2d 813 (1999).

After any closed session, a state body or a legislative body of a local agency must reconvene in open session prior to adjournment to report on any action taken. Cal. Gov't Code §§ 11126.3(f) (Bagley-Keene Act); 54957.1(a) (Brown Act). The Bagley-Keene Act requires the state body to make any reports and disclosures, provide any documentation and make any other disclosures required by Section 11125.2 of action taken; announcements may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location. Cal. Gov't Code § 11126.3(f) and (e).

The Brown Act requires disclosure of copies of any contracts, settlement agreements or other documents that were finally approved or adopted in closed session to anyone requesting disclosure within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956. Cal. Gov't Code § 54957.1(b). Documentation shall be made available to any other person on the next business day following the meeting. Cal. Gov't Code § 54957.1(c).

The Brown Act provides that the body shall publicly report, orally and in writing, any action taken in closed session and every member's vote or abstention, as follows:

(1) approval of a final agreement on the purchase, sale, exchange or lease of real estate for or by the local agency. The body shall disclose the fact of approval and the substance of the agreement at the public meeting during which the closed session is held (Cal. Gov't Code § 54957.1(a)(1));

(2) approval to legal counsel to initiate or intervene in an action, to defend, or seek or refrain from seeking appellate review, or to enter an action as an amicus curiae. The report shall identify, if known, the adverse party or parties and the substance of the litigation and shall be reported in open session at the meeting during which the closed session is held. However, if the action is to initiate or intervene in an action, the body need not identify the action, the defendants or other particulars, but shall state that a directive was given and that once the action is formally commenced, the particulars shall be disclosed to any person upon request, unless disclosure would jeopardize the body's ability to serve a party or negotiate settlement (Cal. Gov't Code § 54957.1(a)(2));

(3) approval to legal counsel to settle pending litigation. The body shall report its acceptance and disclose the substance of the agreement once it is final, as further specified by the statute (Cal. Gov't Code § 54957.1(a)(3));

(4) disposition of a claim for tort liability, public liability or worker's compensation. The body shall report the name of the claimant and local agency to whom the claim was directed, the substance of the claim, and the amount approved and agreed upon by the claimant as soon as the disposition is reached (Cal. Gov't Code § 54957.1(a)(4));

(5) action taken to appoint, employ, dismiss, accept the resignation of, or any other action affecting a public employee's employment status shall be reported at the public meeting during which the closed session is held. The body shall report the title of the position. However, the report of a dismissal or decision not to renew an employment contract shall be made at the first public meeting following the employee's exhaustion of administrative remedies (Cal. Gov't Code § 54957.1(a)(5));

(6) approval of a final labor agreement with represented employees that has been ratified and accepted by the other party. The body shall disclose items approved and the parties to the negotiation and shall be made after the agreement is final and has been accepted or ratified by the other party (Cal. Gov't Code § 54957.1(a)(6)); and,

(7) pension fund investment transaction decisions made pursuant to Section 54956.81 shall be disclosed at the first open meeting after the earlier of the close of the investment transaction or the transfer of pension fund assets for the investment transaction (Cal. Gov't Code § 54957.1(a)(7)).

The minute book of a closed session is not a public record subject to inspection pursuant to the California Public Records Act and must be kept confidential. Cal. Gov't Code §§ 11126.1 (Bagley-Keene Act), 54957.2(a) (Brown Act).

Comment: In Register Division of Freedom Newspapers, Inc. v. County of Orange, 158 Cal. App. 3d 893, 906-907, 205 Cal. Rptr. 92 (1984), the court held that closed session minutes must be disclosed under the Public Records Act if a legislative body calls a closed session in violation of the Brown Act and no other privileges apply to the discussions. But another court has held that the Brown Act does not contain any provision for disclosing the minutes of a closed session meeting where the legislative agency correctly convened a closed session under the Brown Act, but strayed into topics that were not on the agenda or not proper for discussion in closed session. Cty. of Los Angeles v. Superior Court (Union of Am. Physicians and Dentists), 130 Cal. App. 4th 1099, 1105-1106, 30 Cal. Rptr. 3d 708 (2005). In that case, the court held that minutes of a closed session meeting remained privileged from discovery, even where the body may have violated the Brown Act. Id. at 1105. This case should be distinguished by pointing out that the plaintiff had never filed a Brown Act lawsuit, and that the issue of whether the Brown Act had been violated had not been fully litigated in the trial court, and the plaintiff was seeking discovery of closed session minutes in a non-Brown Act lawsuit.

But given the holding of Union of American Physicians and Dentists, it is advisable to combine any Brown Act demand letter and lawsuit with a demand under the California Public Records Act for the minutes of the portion of the closed session that violated the Brown Act, and assert that release of the documents is being sought under the Public Records Act and the Brown Act.

Minutes of executive sessions need only reflect the general subject matter of discussions. Colo. Rev. Stat. § 24-6-402(2)(d). However, in the case of a meeting of a board of education during which an executive session is held, the minutes of the meeting must indicate the topic of the discussion at the executive session as well as the amount of time each topic was discussed while the board was meeting in executive session. The minutes along with the amount of time each topic was discussed must be posted on the web site of the board not later than ten business days following the meeting at which the minutes are approved by the board. Colo. Rev. Stat. § 22-32-108(5)(d) (2014).
Minutes of executive session are not public records unless court determines that topic was not properly announced or, upon in camera inspection, court determines that discussion went substantially beyond the scope of the announced topic or included formal action or adoption of policy, position, or resolution. Colo. Rev. Stat. § 24-72- 204(5.5)(b).

Same time limitations as for regular meetings. Conn. Gen. Stat. §1-231(a).  The minutes of an executive session must disclose the names of all persons in attendance, except job applicants who attend for the purpose of being interviewed. Conn. Gen. Stat. §1-231(a).  There are no specific provisions or any reported authority discussing whether the minutes of an executive session are a public record.

A record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f).

Minutes are a public record. However, minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session. Id. The burden of proving that public disclosure of the minutes would defeat the lawful purpose of the executive session is on the public body wishing to prevent disclosure. See Del. Op. Att’y Gen., No. 05-ib26 (Aug. 29, 2005). A practical reason for a public body to keep “meaningful minutes” (a contemporaneous record of subjects discussed in executive session) is to avoid failing to meet its burden of proving that the action was justified. The Act neither requires that subjects discussed in executive session must be summarized nor attempts to define how specific such a summary should be. See Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995).

Closed meetings are subject to the same record-keeping requirements as open meetings.  Thus, all closed meetings must be recorded electronically, unless a recording is not feasible, in which case detailed minutes must be kept.  See D.C. Code Ann. § 2-578(a).

Minutes may be withheld from the public record under the standards established for closed meetings in D.C. Code Ann. § 2-575(b).

The entire session must be recorded by a certified court reporter. The reporter must record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session can be off the record. The court reporter’s notes must be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting. Fla. Stat. § 286.011(8)(c).  The transcript of the session is made public upon conclusion of the litigation. Fla. Stat. § 286.011(8)(e).

The Act requires that the publicly available minutes of any agency meeting in part closed to the public must reflect the specific reasons for the closure, the names of the members present and the names of those voting for closure. O.C.G.A. § 50-14-4(a).

The Act also requires that the agency file with the minutes a notarized affidavit, executed by the person who presided over the meeting or, if the agency’s policy so provides, every member of the agency in attendance, stating under oath that the executive session was devoted to matters within a specified exception to the Act. § 50-14-4(a).

The information required for the minutes are the same for regular meetings and for executive and limited meetings. Minutes from executive and limited meetings are public record except when and so long as publication would defeat the purpose of the closed hearing, but no longer. Haw. Rev. Stat. § 92-9(b).

Minutes of executive sessions are required and must include reference to the specific statutory authority for holding the executive session. Idaho Code § 74-205(2).

In addition to including the specific statutory authority for holding an executive session, the minutes of an executive session must “provide sufficient detail to identify the purpose and topic of the executive session but shall not contain information sufficient to compromise the purpose of going into executive session.” Idaho Code § 74-205(2).

Minutes must be kept at closed meetings. 5 ILCS 120/2.06. Public bodies must also keep a verbatim record of all their closed meetings in the form of an audio or video recording. 5 ILCS 120/2.06(a).

Minutes of a meeting closed to the public are available for public inspection “only after the public body determines that it is no longer necessary to protect the public interest or the privacy of an individual by keeping them confidential.” 5 ILCS 120/2.06 (f). There is no case law in which access to minutes was sought under this provision. Each body must twice annually review all minutes of closed meetings to determine if they should be released. See 5 ILCS 120/2.06 (c)).

Although a public body may consent to disclose the verbatim record of its closed meetings or may determine that the verbatim record no longer requires confidential treatment, the verbatim record is not otherwise open for public inspection. 5 ILCS 120/2.06(e). Further, the verbatim record is not subject to discovery in an administrative or judicial proceeding except to enforce the Open Meetings Act. Id. In a civil suit to enforce the Act, the court, if it believes such an examination is necessary, must conduct an in camera examination of the verbatim record as is appropriate to determine whether there has been a violation of the Act.

The minutes must identify the subject matter considered by specific reference to the enumerated instance for which public notice was given. Ind. Code § 5-14-1.5-6.1(d).  The governing body must certify by a statement in its memoranda and minutes that it discussed nothing in the executive session other than the subject matter specified in the public notice. Id.

The meeting minutes of executive sessions are of public record. The Open Door Law specifically provides that the memoranda are to be available within a reasonable period of time and the minutes, if any, are to be open for public inspection and copying. “Reasonable period of time” is not defined by the Act. Ind. Code § 5-14-1.5-4(c).

The vote of each member on the question of holding a closed session and the reason for holding the closed session by reference to a specific statutory provision must be entered in the minutes. Iowa Code § 21.5(2).

"The detailed minutes and tape recording of a closed session shall be sealed and shall not be public records open to public inspection." Iowa Code § 21.5(4). But see Iowa Code § 21.5(1)(j) ("The minutes and the tape recording of a session closed under this paragraph shall be available for public examination when the transaction discussed [a real estate purchase] is completed.").

Sealed records of closed session available only in enforcement action, or in discovery after trial court weighs the statute providing for sealed records against the discovery rule allowing an adverse party access to information. Fettkether v. City of Readlyn, 595 N.W.2d 807, 815 (Iowa App. 1999). See also, Tausz v. Clarion-Goldfield Cmty. Sch. Dist., 569 N.W.2d 125, 127 (Iowa 1997) ("A special need for relevant evidence by a party engaged in litigation with the public agency and seeking discovery under Iowa Rule of Civil Procedure 122(a) may be accommodated by court-ordered disclosure to that party of relevant portions of the otherwise confidential record.").

A court determination under section 21.5(4) that minutes or recording of a closed meeting must be disclosed to a party seeking enforcement of the Iowa open meetings act is not a determination that a violation of the act has occurred. Olinger v. Smith, 889 N.W.2d 476, 479 n.1 (Iowa Ct. App. 2015).

K.S.A. 75-4319(a) requires that “[t]he complete motion shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency.”  A recent Attorney General Opinion provides that “[a] motion to recess into a closed or executive meeting must be recorded in its entirety in the minutes of the public body or agency. The recording of the motion is not “complete” if it merely summarizes the actual motion in a manner that addresses only the three statutory elements but omits other content of the motion as it was in fact made.”  Kan. Att’y Gen. Op. 2018-1.

KOMA does not require that the information discussed during executive session be recorded in minutes or otherwise.  Kan. Att’y Gen. Op. 90-47.  If the body chooses to take minutes of or otherwise record the executive session, such recordings are not open for public inspection unless and until cited in open session.  K.S.A. 45-221(a)(20).

The Open Meetings Act directs that the minutes of "action taken at every meeting of any such public agency . . . shall be promptly recorded." Ky. Rev. Stat. 61.835. The Attorney General has opined that "the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session." 94-OMD-110. Public agencies are prohibited from taking final action in a closed session. Ky. Rev. Stat. 61.815(1)(c).

The "minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session." 94-OMD-110. Minutes of an improperly conducted closed session "must be made available for inspection." See 92-ORD-1346.

Minutes are required only for "open meetings," not for "executive sessions." La. Rev. Stat. Ann. § 42:20(A).

The same requirements applicable at regular meetings apply to emergency meetings.  A body must create minutes of each meeting.  1 M.R.S.A. § 403(2).  The minutes must include (A) the date, time and place of the public proceeding; (B) the members of the body holding the public proceeding recorded as either present or absent; and (C) all motions and votes taken, by individual member, if there is a roll call.  1 M.R.S.A. § 403(2).  The minutes need not include the subject matter of deliberations in executive session.  To the extent that minutes are taken of deliberations in executive sessions, the minutes are confidential so long as the executive session was itself lawful.  Blethen Me. Newspapers, Inc. v. Portland School Cmte., 2008 ME 69, ¶ 18, 947 A.2d 479, 484 (“Because the executive session was lawful, documents prepared for use during the executive session and notes made during the executive session are not subject to public examination.”).  If minutes contain information derived from documents declared confidential by statute, the part of any minutes referring to confidential information is also confidential. See Guy Gannett Pub. Co. v. City of Portland, Docket No. CV-92-858 (Sept. 24, 1992).

Minutes are required for all meetings subject to the Act. § 3-306(b).
Where the public body meets in closed session, the minutes of its next open session must include a statement of the time, place and purpose of the closed session; the recorded vote of each member as to closing the session; and a citation of authority under the Act for closing the session. § 3-306(c)(2). In addition, the Act requires closed meeting minutes to list "the topics of discussion, persons present, and each action taken during the session." § 3-306(c)(2)(iv).
Except as otherwise provided in § 3-306(c)(4), minutes of closed meetings and any recordings shall remain sealed from public inspection, and may not be open to public inspection. § 3-306(c)(3). However, § 3-306(4)(e) provides that a public body shall keep a copy of the minutes and recordings for at least 5 years after the date of the session. § 3-306(4)(e)(1). The minutes and recordings (if made) shall be unsealed if a majority of the body votes in favor of opening the records either on the body's own initiative or at the request of a person. § 3-306(c)(4)(iii). For meetings closed for the purpose of considering the investment of public funds or the marketing of public securities, the minutes are required to be unsealed once the funds have been invested or the securities have been marketed. § 3-306(c)(4).

The information required is the same as for regular meetings plus the additional requirement that all votes in the executive session shall be recorded as roll call votes which shall become a part of the record of the executive session. G.L. c. 30A, § 22(b).

Minutes are a public record, except that:

The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under [G.L. c. 4 § 7, 26th(a), which permits exemptions from disclosure by statute], as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with [G.L. c. 30A, § 21 (Meeting of public body in executive session)].

G.L. c. 30A, § 22(f). However, once the purpose for which the executive session “has been served, the minutes, preparatory materials and documents and exhibits of the session” must be disclosed, “unless the attorney-client privilege or 1 or more of the exemptions” set forth in G.L. c. 4 § 7, 26th apply.

 

If an executive session is held pursuant to G.L. c. 30A, § 21(a)(1)–(3), which pertains to strategy sessions in preparation for collective bargaining or litigation, “then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure . . . unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed, unless the attorney-client privilege or 1 or more of the exemptions” set forth in G.L. c. 4 § 7, 26th apply. G.L. c. 30A, § 22(f).

A public body must, “at reasonable intervals, review the minutes of executive sessions” to determine if continued non-disclosure is still appropriate. G.L. c. 30A, § 22(g)(1).

If someone asks to “inspect or copy the minutes of an executive session or any portion thereof,” the public body must respond within 10 days and must release any minutes not covered by one of the exemptions mentioned above.  G.L. c. 30A, § 22(g)(2).  If the public body has not reviewed the minutes, it must do so and release any non-exempt minutes either by the public body’s next meeting or 30 days, whichever occurs first. Id.

As a 2/3 roll call vote of members is required to call a closed session, the roll call vote and the purpose or purposes for calling the closed session must be entered into the minutes of the meeting at which the vote is taken. Mich. Comp. Laws Ann. § 15.267(1); see also id. § 15.269(l).

Minutes of closed meetings, which are to be retained by the clerk of the public body, are not available to the public and will only be disclosed if required by a civil action filed under Mich. Comp. Laws Ann. §§ 15.270, 15.271, or 15.273. See id. § 15.267. Transcripts of closed sessions are part of the minutes and are exempt from disclosure. Titus v. Shelby Charter Twp., 226 Mich. App. 611, 574 N.W.2d 391 (1997). But see Traverse City Record-Eagle v. Traverse City Area Pub. Schs. Bd. of Educ., 337 Mich. App. 281, 975 N.W.2d 104 (2021) (rejecting the argument that a document created at the meeting and then mentioned in the minutes was therefore part of the meeting’s meetings, noting “just because the OMA does not give an exclusive list of what may be contained in a meeting’s minutes does not mean that every document referred to in the meeting can be said to be a part of the same.”) A public official who disseminates closed session minutes to the public risks criminal prosecution and civil penalties. 2000 Op. Att'y Gen. No. 7061 (2000).

As with open meetings, there are no general requirements that minutes be kept of closed meetings. However, if a public body closes a meeting to evaluate the performance of an individual who is subject to its authority, the public body must "summarize its conclusions regarding the evaluation" at its next open meeting. Minn. Stat. § 13D.05, subd. 3(a). If a meeting is closed pursuant to Section 13D.03 for labor negotiations, a written roll of the members and other persons present at the closed meeting is to be made public after the meeting. Minn. Stat. § 13D.03, subd. 1(d). In addition, proceedings of a closed meeting to discuss negotiation strategies must be tape recorded and made available to the public after all labor contracts are signed. Minn. Stat. § 13D.03, subd. 2.

Must show "the members present and absent; the date, time and place of the meeting; an accurate recording of any final actions taken at such meeting; and a record, by individual member, of any votes taken; and any other information that the public body requests be included or reflected in the minutes." § 25-41-11; see Op. Att'y Gen. Nov. 27, 1989 to Guy T. Gillespie, III.

Minutes must be recorded within 30 days and are a public record. § 25-41-11; Op. Att'y Gen. July 16, 1986 to Bennie G. Thompson. Draft minutes are also a public record, and must be made available within 14 working days after a request is made. Op. Att'y Gen. Aug. 22, 1983 to Mike Davis; Op. Att'y Gen. Jan. 2, 1986 to Charles S. Tindall III.

Minutes are required for both open and closed meetings. Mo.Rev.Stat. § 610.020.7.

The vote of each member on the question of closing the meeting and on the specific reason for closing the meeting must be announced publicly at an open meeting and entered into the minutes of the open meeting. This information is public. Mo.Rev.Stat. § 610.022.1.

Generally, the reasons justifying the closed meeting must be reflected in the minutes.

"The vote of each member on the question of holding a closed session, the reason for the closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes." Neb. Rev. Stat. §84-1410(2). While the minutes must include the information detailed in Neb. Rev. Stat. §84-1410(2), no other information needs to be provided in the minutes of a closed meeting. See Neb. Op. Att'y Gen. No. 98045 (11-3-98) (providing that minutes of all matters discussed need not be kept when a public body is meeting in closed or executive sessions).

The Nebraska Attorney General ruled that a public body in closed session need not keep minutes of the closed meeting discussion in part because the minutes are a matter of public record and therefore would defeat the purpose of a closed meeting. Neb. Op. Att'y Gen. No. 98045 (11-3-98).

Minutes of closed meetings must contain the same information as minutes of open meetings. NRS 241.035(2). Minutes of closed meetings become public records when the body determines that the matters discussed no longer require confidentiality or other specific circumstances are satisfied. NRS 241.035(2)(a)(b)(c).

Requirement of Minutes. Minutes of proceedings in nonpublic session "shall be kept and the record of all actions shall be promptly made available for public inspection." RSA 91-A:3,III.

Minutes and decisions reached in nonpublic session are to be disclosed within 72 hours of the meeting. The only exception to this requirement is that if the public body "by recorded vote of 2/3 of the members present . . . determine[s] that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life." RSA 91-A:3,III.

A public body is required to keep minutes of a closed session to the same extent as a public session. N.J.S.A. 10:4-14.

The minutes, including tape recordings, of a closed session are public records under the Open Public Record Act or the common law. N.J.S.A. 10:4-14; see also Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556, 691 A.2d 321 (1997); South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 491, 591 A.2d 921 (1991); Atlantic City Convention Center Authority v. South Jersey Publishing Co., 135 N.J. 53, 63-64, 637 A.2d 1261 (1994).

Meeting minutes must specifically state that only identified matters were discussed in the closed meeting.  NMSA 1978 § 10-15-1(J).  These minutes are public record, but details of closed meetings are not required to be reported, only that the secret discussions concerned only the identified subjects.  NMSA 1978 § 10-15-1(G) and (J).

The OML requires that:

minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law.

N.Y. Pub. Off. Law § 106(2) (McKinney 1988).

See Matter of Cutler v Town of Mamakating, 137 A.D.3d 1373, 26 N.Y.S.3d 409 (3d Dep’t 2016) (finding Town violated OML when it took a vote without recording it in the executive session minutes); Plattsburgh Publishing Company v. City of Plattsburgh, 185 A.D.2d 518, 586 N.Y.S.2d 346 (3d Dep’t 1992) (no minutes required where no formal vote taken and binding decision came at open meeting); Smithson v. Ilion Housing Authority, 130 A.D.2d 965, 516 N.Y.S.2d 564 (4th Dep’t 1987), aff’d, 72 N.Y.2d 1034, 531 N.E.2d 651, 534 N.Y.S.2d 930 (1988) (use of a secret ballot for voting purposes was improper under the OML; when action is taken by vote at executive sessions, the OML requires open voting and a record of each member’s vote); Previdi v. Hirsch, 138 Misc.2d 436, 524 N.Y.S.2d 643 (Sup. Ct. 1988) (the fact that respondents characterize the vote as taken by “consensus” does not exclude the recording of same as a “formal vote”; “moreover, ‘final action’ refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion of remedies”); In re Rainbow News 12 Company, No. 16786/87 (Sup. Ct., Nassau Cty., Dec. 4, 1987) (where no formal vote or action was taken, the OML was not violated by the lack of minutes of an executive session).

The minutes of an executive session shall be available to the public in accordance with the provisions of the Freedom of Information Law within one week from the date of the executive session. N.Y. Pub. Off. Law § 106(3) (McKinney 1988).

See Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d 984, 437 N.Y.S.2d 466 (4th Dep’t 1981), appeal dismissed, 55 N.Y.2d 995, 434 N.E.2d 270, 449 N.Y.S.2d 201 (1982) (remitting case for an in camera review to redact information which impinged upon privacy of various individuals where minutes had been made without contemplation of public exposure); Lakeville Journal v. Village Board of Millerton, No. 3769/85 (Sup. Ct., Dutchess Cty., Dec. 6, 1985) (ordering the village board to produce minutes of any action taken at executive session).

The Open Meetings Law requires that “full and accurate” minutes be kept of all meetings, regardless of whether they are open or closed. When a public body meets in a closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. G.S. § 143-318.10(e).
Minutes kept by public bodies are public records pursuant to G.S. § 132-6. However, G.S. § 143-318.10(e) provides that minutes of a closed session may be withheld from public inspection so long as public inspection would frustrate the purpose of the closed session.

The minutes of an open meeting during which an executive session is held must indicate the names of the members attending the executive session, the date and time the executive session was called to order and adjourned, a summary of the general topics that were discussed or considered that does not disclose any closed or confidential information, and the legal authority for holding the executive session. N.D.C.C. § 44-04-19.2(4).
The minutes indicating the names of the members attending the executive session, the date and time the executive session was called to order and adjourned, a summary of the general topics that were discussed or considered (without disclosing any closed or confidential information), and the legal authority for holding the executive session are open records. N.D.C.C. § 44-04-19.2(4).

Minutes of open sessions must contain "sufficient facts and information to permit the public to understand and appreciate the rationale behind" a public body's decision. That necessarily includes a summary of discussion as well as reciting the motions made and votes taken. White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 667 N.E.2d 1223 (1996); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001).

Merely releasing audio tape recordings of open meetings is insufficient to satisfy the duty to prepare written minutes. State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58 (2001).

Even executive sessions require minutes, but the minutes for those closed sessions need only recount the general subject matter of discussion. Ohio Rev. Code § 121.22(C).

Where the executive session was unlawful, any member of the public may sue to compel the creation of minutes containing more detail than would be required for lawful executive sessions. State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990).

A public body may hold an executive session only after a majority of a quorum of the public body determines, by roll call vote during an open session, to hold such a session. Ohio Rev. Code § 121.22(G).

The minutes are public record. State ex rel. Citizens for Open Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 876 N.E.2d 913, 2007-Ohio-5542.

The minutes of an executive session must contain an official summary of the proceedings which occurred in executive session. 25 O.S. § 312.A. The Oklahoma Supreme Court has ruled that the requirement for minutes to be kept and recorded also applies to executive sessions. Berry v. Board of Governors of registered Dentists, 1980 OK 45; see also 1996 OK AG 100.

Minutes of an executive session are not public records. 51 O.S. § 24A.5.1.b. However, all votes or action concerning executive session discussions must be publicly cast and recorded. 25 O.S. § 307.E.3; Grayhill v. Oklahoma State Board of Education, 1978 OK 124, 585 P.2d 1358 (public announcement in front of board members of 5-0 vote taken in executive session satisfies requirement of publicly recording vote). The written minutes should be sealed and kept in a file separate from the regular minutes. 1996 OK AG 100.

Minutes of an executive session are to be in the same form as minutes for a non-executive session. ORS 192.650(2).
Executive session minutes are not a disclosable public record if disclosure would be inconsistent with the purpose for which the executive session was held. They need not be transcribed if an audio tape of the executive session exists. ORS 192.650(2).

By its terms, the Act only requires that minutes be kept of “all open meetings.” 65 Pa. C.S.A. § 706. There are various statutory provisions that require specific agencies and public bodies to keep minutes of all their proceedings and allow public inspection. See, e.g., 32 Pa. Stat. §§ 815.101, 820.1 (Delaware and Susquehanna River Basin Commissions); 53 Pa. Stat. §§ 14759, 25057, 53807 (Board of Adjustment); 53 Pa. Stat. § 55631 (Township Civil Service Commission); 62 Pa. Stat. § 1725 (Board of Claims). These provisions would arguably cover “executive sessions,” although their existence with respect to specific agencies is hit-or-miss.

Minutes of a closed meeting must be made available at the next regularly scheduled meeting, unless there is a majority vote in accordance with the OML to keep the minutes closed.  R.I. Gen. Laws § 42-46-7(c).  Into the minutes must be recorded and entered the vote, the reasons for holding a closed meeting, by a citation to the applicable exemption, and a statement specifying the nature of the business to be discussed. R.I. Gen. Laws § 42-46-4.

The Attorney General has noted that the requirement is only to include a statement of “nature of the business”, and there is no requirement to include a detailed statement of the actual discussions during the closed meeting.  Op. Att’y Gen. No. 92-01-01 (January 3, 1992), 1992 WL 478153.  The OML’s provision requiring a majority vote to keep minutes of a closed meeting exempt from disclosure was also interpreted to apply only to meetings closed pursuant to R.I. Gen. Laws § 42-65-5(a)(l)-(4).  If a meeting is closed pursuant to R.I. Gen. Laws § 42-64-5(a)(5)-(7) to discuss a matter such as purchase of property or investment of public funds, minutes of that meeting must be released once the purpose for holding the closed meeting has abated (i.e., the property has been purchased or the investment has been made).  Op. Att’y Gen., id.

Minutes of a closed session may be approved in an open session if no discussion is necessary before approval.  If a public body wants to discuss minutes of a meeting that will be kept closed or if a vote on closure will be taken, the public body may go into closed session to avoid an inappropriate disclosure of the nature of the discussion at the original closed meeting.  See Op. Att’y Gen. No. 90-05-18 (June 18, 1990), 1990 WL 357448.

 

The minutes of a closed session shall be made available at the next regularly scheduled meeting unless the majority of the body both votes to extend the time period and publically state the reason for extending the time period.  R.I. Gen. Laws § 42-46-7(c).

Minutes are required of all public meetings, but the minutes of the portion of the meeting held closed to the public need not be made public. S.C. Code Ann. § 30-4-90.
The act specifies that at a minimum the minutes must contain: (a) date, time and place of meeting, (b) members present or absent, (c) substance of all matters proposed or discussed [since no vote may be taken in executive session there should be no vote to record], and (d) any other information requested by a member to be included.
Minutes of executive sessions are public records, but exempt from mandatory disclosure. S.C. Code Ann. § 30-4-90(b).

SDCL §1-25-3 requires state agencies to keep “detailed minutes of the proceedings of all regular and special meetings….”  Since executive sessions are part of official meetings, whether regular or special, it stands to reason minutes must be kept.  SDCL §1-25-3 further requires that minutes be “available for inspection by the public.”  Despite the non-exclusive language, however, it is unlikely that a court will force any public body to disclose minutes––if kept––of an executive session.

Minutes of a secret meeting will not reflect the substance of what was discussed in an executive session, but no votes may be taken in executive session. T.C.A. § 8-4-104. For example, a governing body might meet in a closed session with its attorney to discuss the pros and cons of a case to consider whether to appeal an adverse trial court result. Then, the body would return to an open session to vote on whether to pursue the appeal, without discussing what was said in the closed session. The minutes are public records.

Except for private consultations permitted under Section 551.071, the governmental body must keep a certified agenda or make a tape recording of the proceedings of each closed meeting. Id. § 551.103(a). "This provides a method of verifying in court proceedings that closed meetings comply with" the Act. Finlan, 888 F. Supp. at 783 (citing Op. Tex. Att’y Gen. No. JM-840 (1988)). The presiding officer must certify that the agenda is a true and correct record of the proceedings. Tex. Gov’t Code§ 551.103(b). The agenda must state the subject matter of each deliberation and include a record of any further action taken as well as the date and time of the beginning and end of the meeting. Id. § 551.103(c). A tape recording must include the presiding officer announcing the date and the times of the beginning and end of the meeting. Id. § 551.103(d).

A member of a governmental body may not copy for his own use a tape recording of a closed meeting in which he participated; nor may the governmental body permit him to do so. Op. Tex. Att’y Gen. No. LO 98-033 (1998). A member of the governmental body who did not attend the closed meeting may review its tape recording. Op. Tex. Att’y Gen. No. JC-0120 (1999). The governing body may also adopt procedures for the review. Id. The governing body may not, however, provide the member with a copy of the tape recording. Id. The governmental body may not permit a former member to review the tape recording of a closed meeting once the member has left office. Id.

A certified agenda or tape recording must be preserved for at least two years after the meeting or (if an action is brought within that period) for as long as litigation involving the meeting is pending. Tex. Gov’t Code§ 551.104(a). These tapes are confidential unless a court rules otherwise in an action under the Act. Finlan, 888 F. Supp. at 783; see also Tex. Gov’t Code§ 551.104(c) (mandating that the certified agenda or tape of a closed or executive session shall be made available for public inspection and copying only upon court order in an action brought under the Act). A governmental body member may be found guilty of a Class C misdemeanor if he participates in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made. Tex. Gov’t Code§ 551.145.

Penalties exist for anyone who, without lawful authority, knowingly makes public the certified agenda or tape recording of a closed meeting. Id. § 551.146. A violator is liable to a person injured or damaged by the disclosure for actual damages, court costs, attorneys' fees, and possibly even punitive damages. Id. The offense is also a Class B misdemeanor. Id.

Section 551.146(c) outlines good faith defenses to either a civil or criminal action brought under Section 551.146. Nothing in Section 551.146 prohibits governmental body members from making public statements about the subject matter of executive sessions. Op. Tex. Att’y Gen. No. JM-1071 (1989) (construing a similar predecessor provision).

 

Written minutes must be kept of all closed meetings and shall include: (a) the date, time, and place of the meeting; (b) the names of all members present and absent; (c) the names of all others present except where such disclosure would infringe on the confidence necessary to fulfill the original purpose of closing the meeting. Utah Code § 52-4-206(3).

The minutes of a closed meeting are protected records under Title 63G, Chapter 2 and may be disclosed only under a court order as provided under Utah Code § 52-4-304. Id. § 52-4-206(5).

Minutes of the executive session need not be taken, but if they are they are also not public. 1 V.S.A. § 313(a).  However, the executive session is basically only an opportunity for consideration and discussion; no “formal or binding action” may be taken in the executive session itself, except for the “securing of real estate options.” Id.

Minutes of a closed meeting may be taken but are not required.  Such minutes are not subject to mandatory public disclosure.  Va. Code Ann. § 2.2-3712.I.

There is no requirement that minutes be taken during a closed meeting or an executive session. However, if minutes are taken, they become public records and may be exempt from disclosure only if Public Records Act exemptions apply.

The Act's 1999 amendments appear to exempt minutes of executive sessions from public disclosure; the amendment appears to presume that such minutes will be prepared. Provision is made for the later disclosure of that portion of executive session minutes when they contain reference to confidential settlement and other matters that are later rendered non-confidential by subsequent action.

The official minutes of the executive session need not be made available to the public. W. Va. Code § 6-9A-5. If an agency makes an informal written record of a discussion held in a closed executive session, those notes also may be exempt from the Freedom of Information Act. Op. Att'y Gen., July 17, 1986.

“The motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection to the extent prescribed in [the Open Records Law].” Wis. Stat. § 19.88(3). Secret ballots may not be used except for the election of officers of the body. Wis. Stat. § 19.88(1).

Minutes must be taken of executive sessions, but they are confidential unless ordered disclosed by a court. No specifications as to the content of the minutes are set forth in the Act.

No unless ordered by a court, or to publicize a member's objection to an executive session as not being authorized by the statute. See Wyo. Stat. § 16-4-405(b).