Environmental / Resource Management
Ombudsman Investigates Transparency in Council Run Workshops
The Chief Ombudsman, Peter Boshier has called for improved transparency and openness in the manner in which local authorities’ conduct workshops. Part 7 of the Local Government Official Information and Meetings Act (LGOIMA) sets out clear requirements for how meetings of a local authority must be conducted (including that they must be open to the public unless the grounds and process for public exclusion in Part 7 are followed). However, Council “workshops” i.e. informal meetings or briefings attended by elected members but where no decision-making takes place, are not regulated under Part 7 and have traditionally been a grey area, with practices varying from council to council as to whether workshops should be open to the public. In a previous decision involving a decision to withhold a powerpoint presentation shown at a private workshop (Case note 537538), the Ombudsman made it clear that conducting internal workshops as private forums that were not open to public scrutiny would circumvent the purpose of the LGOIMA as set out in s 4 “to increase progressively the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities”.
The Ombudsman’s latest report, Investigation into Local Council Meetings and Workshops – Open for Business’ expands on this, and sets out the Ombudsman’s expectations for how workshops should be run.
The investigation looked at eight different sized councils crossing over urban and rural areas and the ways leadership, culture, organisational capability and accessibility influence the way meetings and workshops are experienced by elected officials and the general public. Building on this investigation, the Ombudsman released a general thematic report which made recommendations on how openness and transparency can be improved, including in the way in which workshops are held by local authorities. In agreeing with the ‘guide to Local Government New Zealand standing orders’ (August, 2022), the Ombudsman concurred that all meetings and workshops should follow a ‘open by default’ principle to allow public access.
Statutory context
Section 4 of LGOIMA sets out the purpose of promoting the open and public transaction of business at meetings, with the focus on enabling public participation in decision-making and promoting accountability of elected members and staff. Section 14(1)(a)(i) of the Local Government Act 2002 (LGA) states local authorities in performing their role, should conduct their business in an ‘open, transparent, and democratically accountable manner’.
Part 7 of LGOIMA applies to how local authorities conduct meetings. Meetings are described as instances where ‘actual and effective decisions or resolutions are made’, to which Part 7’s rules apply. Workshops, on the other hand, are not defined, nor does the LGOIMA impose procedural requirements for workshops even though some local authorities will discuss and debate complex and technical issues during these workshops.
Nonetheless, the way in which local authorities conduct workshops falls within the scope of the Ombudsman’s jurisdiction under ss 13(1) and 13(3) of the Ombudsman Act 1975 which confers the Ombudsman with the power to monitor local authorities’ processes in the implementation of official information, meeting practices and resources and systems.
The Ombudsman noted that while councils have discretion to advertise and undertake workshops, a general policy of not advertising workshops is likely to be unreasonable, particularly when assessed against the principle under section 13(1)(a)(i) of the LGA.
The Ombudsman’s investigation highlighted a particular issue with the perception of ‘straw polling’ during workshops where there would be a substantial narrowing of options prior to a decision being made. In other words, in some cases workshops may be used to decide everything but the final decision and the public meeting then used to ‘rubber stamp’ a decision. For councils, this may be seen as a more efficient and cost-effective method of whittling down options, but it carries a risk that the public perception will be that most decision-making is really done behind closed door and that councils only pay lip service to public participation and transparency at public meetings.
The Ombudsman recommended as best practice that councils should publicise all workshops in advance to enable members of the public an opportunity to attend if they wish to. He recommended that it would be in keeping with the principles of openness and transparency for councils to also publicise workshops that are intended to be closed to the public, along with an explanation of why they are being held in a closed session.
The Ombudsman said that it is good administrative practice to keep good records of any workshops held, even those not open to the public. It bears noting that information about matters discussed or provided at an internal workshop can be the subject of an information request under Part 2 of the LGOIMA, even if held privately.
Other issues with workshop processes involve the agendas being vast and technical and only available for public review, at minimum, two days prior to workshops. The accessibility of these agendas and times and dates for workshops are varied amongst council and can contribute to issues for the public.
The six key recommendations made by the Ombudsman in respect of Council workshops are:
- Adopt a principle of openness by default for all workshops, including a clear commitment to record a clear basis for closure where justified, on a case-by-case basis
- Publicising times, dates, venues and subject matters of all workshops in advance, including a rationale for closing them, where applicable;
- Clear audit trails of all workshops and internal guidance for the keeping of records of workshop proceedings;
- Publishing workshop records on the council website as soon as practicable;
- Formalising a process for considering the release of information from closed workshops;
- Consider sign posting on the council website that members of the public are able to complain to the ombudsman in relation to the administration of workshops.
Conclusion
The Ombudsman’s report sends a clear message to councils about the need to encourage and facilitate openness and transparency in all facets of decision making, not just LGOIMA regulated council meetings. Councils should ensure their practices, training and leadership all maintain an understanding of the principles of the LGOIMA and LGA to continue to improve functions of Council which aid the public’s trust and confidence in council’s decision-making processes. Failure to take these recommendations on board is likely to result in negative findings against the local authority concerned in any future investigations by the Ombudsman.
