Open for business: A report on the Chief Ombudsman’s investigation into local council meetings and workshops

In addition to this thematic report, the Ombudsman has released individual reports on the meeting and workshop practices of the 8 councils investigated:

• Clutha District Council
• Palmerston North City Council
• Rangitīkei District Council
• Rotorua Lakes Council
• Taranaki Regional Council
• Taupō District Council
• Timaru District Council
• Waimakariri District Council

Excerpt from Introduction

The Local Government Official Information and Meetings Act 1987 (LGOIMA) is a key tool and safeguard of New Zealand’s democracy. The LGOIMA was introduced five years after the Official Information Act 1982 (OIA) turned the existing legislation—the Official Secrets Act 1951—on its head. The Official Secrets Act was based on the premise that all official information should be withheld from the public, unless good reason existed to release it. New Zealand’s freedom of information legislation (both the OIA and the LGOIMA) reversed the presumption of secrecy and introduced the principle of availability—that official information should be available to the public unless there is good reason to withhold it.

The purposes of the LGOIMA are to increase the availability of information held by local authorities and to ‘promote the open and public transaction of business at meetings’ to enable the public to participate in local authority decision making, to promote accountability of elected members and staff, ultimately enhancing respect for the law and ensuring the promotion of good local government in New Zealand. [1]

As Chief Ombudsman, I have been tasked by Parliament to monitor agencies’ official information and meeting practices, resources and systems. I have jurisdiction to investigate ‘any decision or recommendation made or any act done or omitted’ [2] by a local authority. [3] One way I do this is by undertaking targeted investigations and publishing reports of my findings. I am committed to improving the operation of the LGOIMA to ensure the purposes of this important constitutional measure are realised.

Local councils in New Zealand face a challenging task: meeting high expectations of public accountability and participation, while delivering services in an efficient and effective way, as well as keeping rates as low as possible. Local democracy is built on the premise that the closer decision makers are to the population they serve, the more the people can, and should, participate directly in decisions that affect their daily lives. This is an important task for councils to get right.

Trust is at the core of the relationship between the people and their locally elected representatives. One way local government can earn trust is through transparent decision making that is open to public involvement and scrutiny. Transparency supports accountability, encourages high performance and increases public confidence. People may not always agree with council’s decisions but a transparent process allows them to understand a council’s reasoning, and can mitigate any suspicions of impropriety in the decision making process. Even a perception of secrecy can be damaging, as secrecy breeds suspicion.

A 2023 report by the Organisation for Economic Co-operation and Development (OECD) titled Drivers of Trust in Public Institutions in New Zealand found that only 45 percent of New Zealanders surveyed reported having trust in local government councillors. [4] This is significantly lower than reported trust in the public service at 56 percent. Councils’ conduct around meetings and workshops are likely to be factors that contribute to the level of public trust in elected officials.

I initiated this investigation on 2 August 2022 to test concerns that councils were using workshops and other informal meetings to make decisions. [5] As outlined in my chapter on Workshops, final decisions and resolutions cannot lawfully be made outside the context of a properly constituted council meeting. If councils were making decisions of this nature in workshops, it would be an avoidance of their responsibilities under the LGOIMA. I also examined councils’ practices around excluding the public from meetings that are regulated by the LGOIMA.

The scope of my investigation was to investigate eight councils’ [6] actions and decisions in relation to both council meetings [7] held under the LGOIMA; and workshops (or informal meetings) to which LGOIMA meeting provisions do not apply. [8] In particular, I explored whether councils met their obligations under Part 7 of the LGOIMA in relation to council meetings, and good administrative practice in relation to workshops, briefings and informal meetings. The timeframe of matters considered in my investigation was from the electoral term beginning 12 October 2019 until 30 June 2023.

In order to investigate workshops, it was important to clearly understand what a ‘meeting’ is in accordance with the LGOIMA, and whether or not ‘workshops’ (or other informal meetings) should in fact be treated as ‘meetings’ under that Act.

The LGOIMA states that any meeting of a local authority, at which no resolutions or decisions are made, is not a ‘meeting’ for the purposes of the Act. During the course of my investigation, it became apparent that there is a lack of clarity around the definition of a ‘decision’. As discussed in Relevant Legislation, the historical context of the drafting of section 45(2) of the LGOIMA indicates that legislators thought it was not necessary or appropriate to require deliberative meetings (such as workshops) to be notified to the public. When actual and effective decisions or resolutions are made, the meetings must be notified.

I saw no evidence in my investigation that actual and effective decisions were made in workshops, but I saw some workshop practices that are counter to the principles of openness and could contribute to a public perception that workshops are not being used in the right way.

This investigation has highlighted to me the important role that workshops play in the decision making process for councils. Provided an actual and effective decision is not made, deliberative discussion may take place in a workshop. Workshops can be an efficient use of time, in order to convey information which may be voluminous and complex to elected members, and for elected members to give council officials advice to focus their efforts on the range of tenable options. This prevents time and energy being wasted on options that aren’t realistic.

However, this is not to say that all workshops should take place behind closed doors or without adequate record keeping. The principles of openness and good administrative practice apply to workshops as much as any other aspect of council business. It is crucial that these are adhered to in order to maintain public trust and avoid perceptions that councils are operating in secret. In this report, I provide guidance on what those principles are, to ensure each council’s practices are consistent with good record keeping and the requirement under the Local Government Act 2002 (LGA) to ‘conduct its business in an open, transparent, and democratically accountable manner’. [9]

I expect all councils to make sure their policies and practices meet my expectations of good workshop practice. Crucially, this includes opening workshops to the public by default; closing them only where good reason exists. I acknowledge concerns raised by some councils about what they consider to be a ‘growing trend’ of people with strong views and/or activist groups applying undue pressure to elected members and staff. At least one elected member said they had been threatened by a member of the public. I understand there is an escalating environment of misinformation and elected members should not have to endure unreasonable or harassing behaviour. However, they should be resilient enough to withstand reasonable public scrutiny. Ensuring the public has access to accurate information should provide an antidote to misinformation. Local government will need to look at how to respond to these challenges, perhaps by leveraging new technologies, in ways that advance open government principles.

Workshops are not the only forum in which the public may perceive councils to be conducting business behind closed doors. My investigation also looked at a variety of practices around council meetings, which are required to be open under the LGOIMA. In particular, I looked at councils’ practices around public excluded portions of meetings, as well as the records kept of council meetings. I am pleased that the majority of councils I investigated now live stream council meetings, which greatly aids transparency.

Conducting a great deal of council business behind closed doors, whether through workshops or public excluded meetings, can have a damaging effect on how open the community perceives a council to be. The appropriate use of meeting provisions and workshops is at the heart of openness and transparency. As set out in the purposes of the LGOIMA and LGA, it is crucial that councils conduct their business in an open and transparent manner so the public can see democracy in action, and participate in democratic processes. Local authorities in New Zealand should be open for business.

Peter Boshier
Chief Ombudsman
October 2023

Footnotes

[1] Link to section 4 LGOIMA. Return to text

[2] Pursuant to section 13(1) and 13(3) of the Ombudsmen Act 1975. Return to text

[3] ‘Local authority’ in the context of this investigation refers to all city, district and regional councils referred to in Part 3 of Schedule 1 of the Ombudsmen Act 1975. Return to text

[4] OECD report Drivers of Trust in Public Institutions in New Zealand, published in February 2023. Return to text

[5] Link to meeting and workshop practice investigation announcement. Return to text

[6] My investigation considered practices from a mix of different sized councils, both urban and rural, across a variety of geographical locations. I notified eight councils across the country that I would be investigating their meeting and workshop practices: Rotorua Lakes Council, Taranaki Regional Council, Taupō District Council, Palmerston North City Council, Rangitīkei District Council, Waimakariri District Council, Timaru District Council and Clutha District Council. Return to text

[7] For the purpose of this investigation ‘meeting’ has the meaning given to it in section 45(1) of the LGOIMA. Return to text

[8] Any organised or scheduled meeting attended by council staff and elected members which falls outside of the definition of a ‘meeting’ in section 45(1) of the LGOIMA. Return to text

[9] Link to section 14 LGA. Return to text