Request for Chief Executive’s performance agreement and KPIs
Request for Chief Executive’s performance agreement and KPIs—s 7(2)(a) LGOIMA did not provide good reason to withhold most of the performance agreements and KPIs—however, s 7(2)(c)(ii) provided good reason to withhold ‘stretch targets’—there was a mutual understanding of confidentiality around these targets, and release could make chief executives reluctant to put ambitious or challenging targets on paper, in order to protect themselves from public criticism if the targets are not met—this would damage the public interest
A requester sought copies of the Nelson City Council Chief Executive’s performance agreement and Key Performance Indicators (KPIs) for 2018/19.
The Council refused the request for the performance agreement (which included the KPIs) under section 7(2)(a) of Local Government Official Information and Meetings Act (LGOIMA), in order to protect the privacy of the Chief Executive. The requester then complained to the Chief Ombudsman.
During the course of the investigation the requester sought copies of the 2016/17 and 2017/18 performance agreements, which the Council also refused under section 7(2)(a). The Chief Ombudsman investigated both refusals concurrently.
The performance agreements at issue set out general performance expectations/obligations for the Chief Executive, their KPIs or areas of focus, and the measures/targets by which Council would assess the Chief Executive’s performance.
Section 7(2)(a) of the LGOIMA applies where withholding is necessary to ‘protect the privacy of natural persons’.
Performance agreements and KPIs are not generally information that is of a particularly personal or private nature. The terms of the performance agreements in question were generic, in that they related to the role of the Chief Executive, rather than the person performing that role. The information did not give insight into the Chief Executive’s perceived performance, but rather only the areas the Council had directed the Chief Executive to focus on, and the measures against which their performance would be assessed.
Public servants in senior leadership positions, such as a local government chief executive, should expect to encounter a degree of public scrutiny about their performance expectations. The Chief Ombudsman was not convinced that release of the performance agreements would lead to public scrutiny of the current Chief Executive that was manifestly over and above the norm.
The Chief Ombudsman consulted with the Privacy Commissioner in accordance with section 29A of LGOIMA, to ascertain his views on the merits of refusing the request in reliance on section 7(2)(a). The Privacy Commissioner considered there was a low privacy interest in the information that should be given little weight.
The Chief Ombudsman concluded that there was a negligible privacy interest in the performance agreements, and section 7(2)(a) did not apply.
The Chief Ombudsman did note, however, that he would generally consider information about a person’s assessed performance in their role to be much more private than the assessment measures for that role.
The Chief Ombudsman noted that chief executives have a significant impact on the direction and performance of councils as a whole, and their performance targets and areas of focus flow through to the rest of the organisation. Release of the performance agreements would provide the public with insight into the areas their elected council members have directed the chief executive to focus on.
In these circumstances, the Chief Ombudsman considered there was a strong public interest in the release of the performance agreements, in order to promote transparency. Providing the public with accurate information on the objectives, responsibilities and assessment measures of the Chief Executive would help foster effective public accountability.
There was also a high public interest in the public having meaningful information that shows how the Chief Executive’s goals/objectives align with the already publicly available information on the goals/objectives in the Council’s annual and long-term plans.
Section 7(2)(c)(ii) of the LGOIMA applies where withholding is necessary to ‘protect information which is subject to an obligation of confidence… where the making available of the information would be likely otherwise to damage the public interest’.
The Council had identified several KPI assessment measures as ‘stretch targets’—measurable but ‘optimistic’ targets that both the Chief Executive and Council understood would be difficult to meet.
The performance agreements were negotiated in public excluded meetings and the Chief Executive and Council had a mutual understanding that these discussions would be confidential. The Chief Ombudsman did not see confidentiality as naturally extending to the outcome of these discussions, but accepted that the Chief Executive and Council had a reasonable expectation that any ‘optimistic’ targets would remain confidential beyond this meeting.
There is a public interest in the ability of councils to have frank and honest discussions with their chief executives about what is achievable and what is ambitious in terms of performance. The Chief Ombudsman considered that release of these targets could make chief executives reluctant to put ambitious or challenging targets on paper, in order to protect themselves from public criticism if the targets are not met. This would not be in the public interest.
Notwithstanding the public interest factors above, the Chief Ombudsman considered section 7(2)(c)(ii) provided good reason to withhold these ‘stretch targets.’
In light of the above, the Chief Ombudsman formed the opinion that section 7(2)(a) did not provide good reason to withhold most of the performance agreements. However, the assessment measures identified as ‘stretch targets’ could be withheld under section 7(2)(c)(ii).
The Chief Ombudsman recommended that the Council release the performance agreements in question to the requester, with redactions made to the ‘stretch targets’ in the 2016/17 and 2018/19 performance agreements.
The Council subsequently released the performance agreements, but chose not to withhold the ‘stretch target’ assessment measures from the 2018/19 performance agreement.
This case note is published under the authority of the Ombudsmen Rules 1989. 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.