Complaint that notice of meeting did not comply with LGOIMA provisions and meeting minutes were not a true and correct record

Member of public concerned that notice of meeting did not comply with relevant LGOIMA provisions and minutes of meeting were not a true and correct record—Ombudsman satisfied that meeting notified correctly—Ombudsman formed view that allowing one member of public to address subcommittee did not amount to a public forum and printing resolution on agenda was not sufficient to meet requirements of s 48(4)(a)—Council agreed to amend minutes and take steps to ensure staff aware of legal requirements    

A member of a local community board who was concerned about the sale process of a local property attended the open part of his local district council’s subcommittee’s meeting on the matter in December 2002. In January 2003 he requested a copy of the minutes of that meeting.

After receiving and considering the minutes, the member came to the view that they did not accurately record the open part of the meeting he attended. He approached the Chief Executive Officer (CEO) of the Council with his concerns but the CEO declined to require that the minutes be corrected.

The member then complained to the Ombudsman that not presenting a true and correct record of the meeting was unreasonable.

The Ombudsman advised the Council that the complaint had four aspects, namely that:

• a resolution to go in-committee was made at the meeting but the public had been advised in the Council’s newspaper column that they were ‘warmly invited to attend the Council meetings listed below’ which included the one that went in-committee;

• there was no mention in the advertisement that part of the meeting was to be in-committee;

• the minutes recorded that there was a public forum when there wasn’t one; and

• a resolution to exclude the public, while recorded in the minutes, was not read to the meeting or made available to the public in attendance as required under the Standing Orders.

In response to the complaint, the Council confirmed that it was normal policy to advertise, in its twice-weekly newspaper column, committee and subcommittee meetings which the public were invited to attend. However, it was not normal policy to indicate the agenda items in these advertisements, nor whether or not part of the meeting was to be held in-committee. In any event, the Council advised that it usually published and distributed agendas for meetings up to five working days in advance of the meeting day. The Council provided the Ombudsman with a copy of the agenda for the meeting at issue, noting that it included a resolution to exclude the public. Further, while there was no advertised public forum for this particular meeting, the Council advised that the complainant seemed to be the only member of the public in attendance and the Chairman allowed the complainant to address the subcommittee.

The Ombudsman noted that sections 47 and 48 of LGOIMA relate to the admission and exclusion of the public at local authority meetings. Section 47 provides that ‘…except as otherwise provided…every meeting of a local authority shall be open to the public’. Section 48 allows for the public to be excluded only on specific grounds. Section 48(4)(a) provides that motions to exclude are required to be put ‘when the meeting is open to the public’.

It seemed clear to the Ombudsman that the intention of the legislation was for all meetings to be open to the public and, if the public were to be excluded, the resolution to do so ought to be put when the public is present with the reason for the exclusion being available to the public. In this case, it seemed to the Ombudsman that simply because the Council invited the public to attend in its advertisement, this did not necessarily mean that all matters to be discussed would be heard in open meeting. The Ombudsman noted the possibility that a matter may be heard with the public excluded was provided for under section 46A(9) of LGOIMA, which requires the principal administrative officer to indicate on each agenda the items he or she reasonably expects the meeting to discuss with the public excluded. The Ombudsman considered the agenda at issue and noted that it stated the meeting would be discussing the item from which it expected the public would be excluded.

The Ombudsman then considered whether the minutes were correct in recording that there was a public forum at the meeting. The Council confirmed that whilst there was no advertised ‘public forum’ for the meeting, the complainant was permitted to address the subcommittee. However, while the Ombudsman acknowledged that the complainant attended the meeting as a member of the public and was given the opportunity to speak, he did not consider this amounted to a ‘public forum’. Further, the Ombudsman observed that there was no public forum advertised. Rather, the meeting simply permitted the complainant to address it.

Finally, the Ombudsman reviewed the resolution to exclude the public. The complainant was concerned that it had not been made available to members of the public present at the meeting and was not read to the public in accordance with section 48(4)(a). The Ombudsman reviewed the minutes of the meeting and noted there was no indication that the Council made the resolution available at the meeting or read it to the public.

The Ombudsman was satisfied that the statutory requirements for notifying, admitting and excluding the public from local authority meetings were met in this case and these particular complaints could therefore not be sustained.

However, the Ombudsman was not satisfied that there was a public forum at the meeting. As a result, he was of the view that the recorded minutes as they were currently worded, gave rise to a misconception that there was a public forum. The Ombudsman therefore sustained this aspect of the complaint on the basis that the minutes were wrong. He suggested that the Council consider formally amending the minutes. The Council agreed to do this at the next meeting of the subcommittee.

Finally, on the basis of the information before him, the Ombudsman considered that the minutes were not a true and accurate record of the meeting and that the resolution to exclude the public was not put to the public in accordance with the requirements of section 48(4)(a). As a result, it was his view that the Council acted contrary to law and he sustained this aspect of the complaint. However, the Ombudsman suggested that the Council consider reviewing its processes to ensure that the requirements of LGOIMA would be met in the future.

In response, the Council acknowledged that the resolution to exclude the public was not actually read aloud to the meeting. However, it maintained that the resolution had been made available to the public in attendance on the basis that the complainant was the only member of the public in attendance and he had a copy of the agenda which included the precise words to exclude the public.

After considering the Council’s further comments, the Ombudsman again referred the Council to the statutory requirements in section 48(4)(a) for making resolutions to exclude the public. He noted that a resolution is created after an agenda item has been discussed and after the motion has been put and voted on. It includes the substance of what was agreed, who proposed it and seconded it, and the outcome of the voting. None of this information would have been in the agenda item. The Ombudsman explained that the fact that the complainant had the agenda items signalled compliance with section 46, as that relates to the agenda being available. It did not mean the Council complied with section 48(4)(a) which requires resolutions to be available. Therefore, the Ombudsman remained of the view that the Council had acted contrary to law in terms of section 22(1)(a) of the Ombudsmen Act and that this aspect of the complaint should be sustained.

The Council agreed to take steps to ensure that staff were aware of the need to strictly observe the requirements of section 48(4)(a). With that undertaking, the Ombudsman discontinued his enquiries.

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.