Financial report not free and frank expression of opinion—linkage between information and expression of opinion—what constitutes improper pressure or harassment—section 9(2)(g)(i) not a ground for exclusion of public from meeting
In mid-1990 the registrar of a polytechnic presented to the polytechnic council a financial report in a new format that was much more detailed than previous reports. Instead of giving a general statement of the polytechnic’s financial position, the report gave figures broken down by department and represented an attempt to give the Council more information about the polytechnic’s financial affairs and particularly to pinpoint areas where there might be problems. The report was considered at a council meeting from which the public was excluded and a later request from a local newspaper reporter for a copy of the report was refused, although some financial information was released.
It was plain from the early correspondence that polytechnic officers dealing with the request were not familiar with the provisions of the OIA. A number of reasons for the refusal were given, such as the report contained a number of material accounting errors; there would be individual monthly variances which could be expected to correct themselves over the year, but which might give a misleading impression for the time being; even if the report was completely accurate, it would be inappropriate to expose individual departmental managers to public scrutiny of their unaudited accounts on a monthly basis; and ‘untrained and uninformed media comment’ would affect the ability of the chief executive officer and the council to monitor the progress of individual departments towards the polytechnic’s objectives and to take the necessary decisions in that context.
It was not until the Chief Ombudsman became involved that polytechnic officers were able to identify their concerns in terms of the OIA.
Section 9(2)(g)(i)
This section is usually invoked to protect information which is, or is said to be, a free and frank expression of opinion. Clearly the report in question was an expression of fact rather than opinion, even if some of the facts were inaccurate. However, the ‘effective conduct of public affairs’ includes the effective financial management of a polytechnic and it may be necessary for officers and council members to express themselves freely and frankly on the question of financial management. However, the Chief Ombudsman was unable to see a link between maintaining the confidentiality of the report and facilitating the free and frank expression of opinion by or to polytechnic officers and council members. It was argued that for discussions to be free and frank with respect to matters of monthly financial issues and resulting corrective strategies, it was necessary that such discussions be held in committee and without either the public or the press intervening in that process.
The Chief Ombudsman agreed that there are certainly occasions when it is desirable for discussions to be held in committee, but these occasions are governed by the provisions of Part 7 of the LGOIMA. Section 48 provides for the exclusion of the public from meetings, but specifically excludes section 9(2)(g)(i) as a ground for excluding the public from meetings of organisations subject to the Act. An organisation cannot exclude the public from its meetings purely because there is likely to be free and frank discussion. There must be a likelihood that the discussion will result in the disclosure of information that is otherwise protected.
In concluding on this aspect of the investigation, the Chief Ombudsman accepted that there may be information which is not in itself a free and frank expression of opinion, but which came into existence for the purpose of facilitating the free and frank expression of opinion and is so closely linked with that purpose that its release would inhibit such expression. However, he did not believe that was the case with the information in question. The information was created to inform councillors about the polytechnic finances. There is no doubt that councillors were accustomed to freely and frankly expressing their opinions on polytechnic finances and while the availability of the information may have enabled them to be more informed in their expressions of opinion, the Chief Ombudsman did not believe it played a part in enabling them to be more or less free and frank in those expressions.
Section 9(2)(g)(ii)
The Chief Ombudsman was advised by the polytechnic’s chief executive officer that he believed publication of the report would lead to public criticism of the performance of individual heads of department. He regarded this as inappropriate since, under the structure set up by the Education Amendment Act, departmental heads are accountable through the chief executive officer to the public and have no direct public accountability. He said that questioning and direct contact between individual managers and the press would tend to confuse the true responsibility of managers to the chief executive officer and for this reason any pressure brought about by publication of the information would be improper. He also believed that the public release of the report would add to the stress already experienced by departmental managers involved in polytechnic reorganisation.
In the Chief Ombudsman’s view, the words ‘improper pressure’ and ‘harassment’ carry quite different connotations from ‘publicity’ or ‘adverse criticism’. If harassment sufficient to affect the effective conduct of public affairs occurs, it is something more than irritating, inaccurate or ill-informed criticism. It is a course of conduct causing such an affect on the individual at which it is aimed that his or her work performance is affected and the employing organisation suffers.
Similarly, improper pressure is something more than a prospect of unwelcome publicity. The Chief Ombudsman was of the view that while he had been provided with evidence that release of the information might result in publicity and criticism, nothing more extreme was likely to occur.
The Chief Ombudsman therefore formed the view that there was no good reason to withhold the information in question and recommended its release. His recommendation was accepted by the polytechnic council and the financial report was released to the requester.
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.