Request for tape recording of Council Committee deliberations
Property owner sought tape recording of Council Committee deliberations (public excluded) on his application for a resource consent—withheld under s 7(2)(f)(i)—basis for public exclusion invalid but withholding grounds still available to Council—information on tape recording consisted of free and frank expression of opinions which, if released, would harm ‘the effective conduct of public affairs’ by hampering, delaying or preventing future resource consent processes—no countervailing public interest considerations favouring release that would outweigh the need to protect information
A property owner applied to a Council for a resource consent to permit the subdivision of his property. After a public hearing of the application by the Council’s hearing committee, the committee then excluded the public before deliberating on the application. The committee gave as its reason for doing so ‘to enable the free and frank expression of opinions by or between or to members or officers or employees of any local authority’.
The Committee recorded its deliberations on tape and later declined the property owner’s application. The property owner was concerned that the hearing for his proposal was flawed and that certain staff had placed undue influence on the councillors thereby swaying them into the decision they made. He therefore requested a copy of the tapes. The Council provided him with copies of the tapes covering the open parts of the hearing but withheld the tape relating to the public excluded part of the meeting, on the basis that:
The Committee resolved to exclude the public from that part of the meeting pursuant to the provisions of Section 7(2)(f)(i) of the Local Government Official Information and Meetings Act to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between members or officers or employees of any local authority.
The property owner then requested that the Ombudsman investigate and review this decision.
During the course of the investigation, the Ombudsman received a copy of the tape and a transcript of its contents. After comparing the two, he was satisfied the transcript was an accurate reflection of the tape’s contents.
The Ombudsman considered the minutes of the Statutory Management Committee meeting. The text of the resolution excluding the public from that meeting stated:
That the public be excluded from the following parts of the proceedings of this meeting, namely consideration of the public excluded agenda.
The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:
General subject of each matter to be considered
Reasons for Passing this resolution in relation to each matter
Ground(s) under section 48(1) for the passing of the resolution
STATUTORY MANAGEMENT HEARING: [Description of application]
To enable the free and frank expression of opinions by or between or to members or officers or employees of any local authority
This resolution is made in reliance on Section 48(1) of the Local Government Official Information and Meetings Act 1987 and the particular interest or interests protected by Section 6 or Section 7 of that Act or Section 6 or Section 7 or Section 9 of the OIA 1982 as the case may require are listed above.
The Ombudsman then considered the relevant statutory provisions referred to in this resolution carefully. He noted that under section 48(1)(a)(i) a Council is not entitled to exclude the public for the reason stated in section 7(2)(f)(i) but it is clearly empowered to deliberate in private on a matter with respect to which ‘a right of appeal lies to any Court or Tribunal against the final decision of the local authority in those proceedings’ (sections 48(1)(d) and 48(2)(a) refer).
In this case, the Council’s committee had heard and was about to deliberate on the complainant’s application for a resource consent in respect of his proposed subdivision. A right of appeal from the Council’s final decision lay to the Environment Court and the Council considered it necessary to deliberate on the matter in private. The Ombudsman noted that it was therefore entitled to exclude the public for that purpose under sections 48(1)(d) and 48(2)(a). It appeared to the Ombudsman that the Committee may have made an error in referring to the wrong provision of the Act when drafting the resolution. The Ombudsman sought the Council’s comment.
In response, the Council acknowledged that section 7(2)(f)(i) of LGOIMA was not available as a reason to exclude the public by virtue of section 48(1)(a)(i), and advised the Ombudsman that it was relying on sections 48(1)(d) and 48(2)(a)(i) for the power to exclude the public on the occasion in question.
Despite the Council’s advice, the wording of the resolution was such that the Ombudsman considered it necessary to review the status of the resolution.
Validity of resolution
The Ombudsman noted that the citation of an incorrect power to undertake some lawful action would not of itself invalidate the action taken. Rather, an action taken by a body such as the Council is, as a matter of law, treated as valid unless and until it is overturned by lawful process. The High Court in Murray v Whakatane District Council commented:
It is settled law that every unlawful administrative act, except perhaps in extreme cases of clear usurpation of power, is operative until set aside by a Court. Even where a decision is challenged by a plaintiff entitled to do so in appropriate legal proceedings, the Court is not compelled to set aside the decision … The validity of a decision is therefore a concept which is ‘relative’, depending upon the court’s willingness to grant relief in any particular situation … The Court’s wide discretion is emphasised by ss 4 and 5 of the Judicature Amendment Act 1972. It does not follow from the fact of illegality in the decision making that the decision will be set aside or, if it is, that it will be set aside ab initio. Matters relevant to the determination of the Court as to the form of relief will include the gravity of the error and its effects upon the applicant, the inevitability of the same outcome or the futility of granting relief, and questions of delay and prejudice to third parties.
It was the Ombudsman’s view that the Committee’s resolution appeared to be subject to this principle. Therefore, whatever grounds there might be on which it could have been challenged, only a Court of appropriate jurisdiction could declare the resolution to have been invalid. As a result, the Ombudsman decided to proceed with his investigation on the basis that the resolution was valid, notwithstanding the fact that the Committee was not authorised to make it on the basis of the cited provision.
Refusal of tape
The Ombudsman distinguished between excluding the public from a meeting and the availability of information that has been considered or generated in the course of such a meeting while the public was excluded. It was the Ombudsman’s view that although LGOIMA authorises exclusion of the public from a meeting upon certain specified grounds only, this does not necessarily limit the grounds upon which information provided at such a meeting may subsequently be withheld. The refusal of the tape therefore fell for consideration under section 51(3) of LGOIMA, which requires a request for the minutes of a public-excluded session to be considered in terms of the withholding provisions of the Act.
Next, the Ombudsman noted that it was not the minutes of the public-excluded session that was the subject of the request but an informal tape recording made for the purposes of convenience. The Ombudsman was satisfied that information recorded in this way did fall within the definition of ‘document’ in section 2 of LGOIMA and was therefore ‘official information’ for the purposes of this investigation.
The Ombudsman then considered the substantive grounds that the Council relied on for withholding the tape, namely, ‘to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between members or officers or employees of any local authority’.
The Ombudsman reviewed the information on the tape and the Council’s transcript. He noted that the Committee’s deliberations consisted of free and frank expression of opinions by the Council members in an essentially informal style. The decision they were making in this case was on a planning matter of some technical complexity and the process involved was one of a judicial or semi-judicial nature. As such, the Ombudsman acknowledged that it necessarily involved the consideration and testing of competing arguments and points of view. Where there is more than one decision-maker involved as in this case, issues are likely to require testing through thorough and often robust discussion. The Ombudsman noted that the atmosphere in this case seemed conducive (in a manner in which debate in public might not be) to a decision making process in which Councillors who were lay persons were required to come to a decision, by majority view if consensus could not be achieved, on these planning matters.
Further, the Ombudsman was also satisfied that the persons involved would either be likely to be more guarded in expressing their views or be unwilling to do so altogether in the future if their free and frank opinions were released. This would hamper, delay and, in extreme cases, prevent the administration of the relevant resource consent process.
On the basis of the information he had considered, the Ombudsman was satisfied that if such deliberations were conducted in public, or in circumstances where they could become public, the necessary free and frank expression of opinions would be inhibited to the detriment of the effective conduct of public affairs relevant to the resource planning process conducted by the Council.
The Ombudsman then considered whether there were any countervailing considerations in the public interest which would favour disclosure. He noted that there was a significant public interest in information about local authority decision making processes being made public, particularly when they are of a judicial nature and more so if there has been an attempt to improperly influence the Councillors in reaching a particular decision such as had been suggested in this case. However, after considering the circumstances of the decision the Ombudsman was satisfied that the information did not indicate that any impropriety had taken place. The Ombudsman also noted that there was a strong public interest in ensuring that ‘the effective conduct of public affairs’ was maintained.
Despite the Council excluding the public on incorrect grounds in this case, it was the Ombudsman’s view that this did not preclude it from asserting that information resulting from the meeting may nevertheless be withheld.
The Ombudsman formed the view that the Council was entitled to rely upon section 7(2)(f)(i) of LGOIMA for withholding the tape on the basis that it contained free and frank expression of opinions by or between or to members or officers of the Council which, if released would be to the detriment of ‘the effective conduct of public affairs’ by hampering, delaying or preventing future resource consent processes. The Ombudsman was unable to identify any public interest considerations favouring release which were sufficiently strong to outweigh this need to maintain the effective conduct of public affairs.
It was the Ombudsman’s initial understanding that the complainant was seeking the tape for the purpose of an appeal of the Council’s decision to the Environment Court. If this was the case, the Ombudsman explained to the complainant that in cases where information is sought in connection with legal proceedings and an application for discovery can be made, he would normally consider it appropriate to exercise his discretion, under section 17(1)(a) of the Ombudsmen Act 1975, to decline to investigate the complaint. This section also applies to investigations under LGOIMA, and provides that an Ombudsman may:
Refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition [the House of Representatives], to which it would have been reasonable for the complainant to resort.
However, the complainant later confirmed that he was not seeking the tape for an appeal. As a result, the Ombudsman decided to investigate the matter.
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.
  3 NZLR 276, 320.