FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
I have received your letter of December 6 in which you asked whether minutes of an
executive session should be "in the same log as the minutes of open sessions."
In this regard, §106 of the Open Meetings Law pertains to minutes and states that:
"1. Minutes shall be taken at all open meetings of a public
body which shall consist of a record or summary of all
motions, proposals, resolutions and any other matter formally
voted upon and the vote thereon.
2. 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 as added by article six of this chapter.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."
Based on the foregoing, as a general rule, a public body may take action during a properly convened executive session [see Open Meetings Law, §105(1)]. If action is taken during an executive session, minutes reflective of the action, the date and the vote must be recorded in minutes pursuant to §106(2) of the Law. If no action is taken, there is no requirement that minutes of the executive session be prepared.
It is emphasized that minutes of executive sessions need not include information that
may be withheld under the Freedom of Information Law. From my perspective, when a
public body makes a final determination during an executive session, that determination will,
in most instances, be public. For example, although a discussion to hire or fire a particular
employee could clearly be discussed during an executive session [see Open Meetings Law,
§105(1)(f), a determination to hire or fire that person would be recorded in minutes and
would be available to the public under the Freedom of Information Law. However, there are situations in which the action may be preliminary and may be withheld under the Freedom of Information Law. For instance, if a public body votes to initiate a disciplinary proceeding against a public employee, minutes reflective of its action would not have include reference to or identify the person, for the charges would not yet have been proven, and the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would result in an unwarranted personal privacy [see Freedom of Information Law, §87(2)(b)].
I hope that I have been of assistance.