The confidentiality conundrum in local government

Recently, a concerning pattern has emerged in how certain South Australian councils interpret the confidentiality provisions of the Local Government Act 1999 (SA) (LG Act).

Councils that are incorrectly using the confidentiality provisions expose themselves to the risk of successful challenge – meaning that discussions, reports (and attachments), decisions and minutes of council which were thought to be protected by the confidentiality provisions, may not in fact be protected by the purported confidentiality orders. Instead these materials, thought to be shielded by confidentiality orders, may become publicly accessible.

CEO confidentiality recommendation

The first concerning practice that we have observed relates to the chief executive officer's discretionary power under section 83(5) of the LG Act to indicate that the council may consider a matter in confidence. We have observed that certain councils publish meeting agendas which do not include reports and documents relating to 'confidential items', yet those meeting papers also do not include the CEO's confidentiality recommendation.

For example, one particular council listed three matters in its public agenda under a heading "Confidential Items". Documents and reports which were supplied to the elected members relating to those matters were not made available for public inspection. Some may assume that listing matters under a "Confidential Items" heading acts as the CEO's indication under section 83(5) of the LG Act. However, this section mandates that if a CEO indicates confidentiality, the CEO must, at the same time, specify the basis on which the confidential order could be made.

In this specific council's case, the public agenda failed to convey any explicit indication from the CEO regarding the potential confidentiality of the matters to be discussed. Furthermore, they did not specify the basis on which a confidentiality order could be made in relation to any of the three items listed.

The documents and reports relating to those three "Confidential Items" listed, should have been included in the public agenda and been publicly available.

Section 83(5) recommendation

The LG Act requires any documents or reports which are provided to elected members (for consideration at a meeting) to be made available to the public. An exception to this legislative obligation is where documents or reports are subject to the operation of a CEO's section 83(5) indication.

A question arises whether it is sufficient for a CEO to indicate on a document or report provided exclusively to elected members (as part of the agenda) that council may treat a matter as confidential, while referencing the grounds for confidentiality. If so, then such documents or reports would not need to be included in the public agenda.

However, our assessment is that this practice is not compliant and therefore not sufficient to keep documents and reports confidential.

We recommend that a CEO indication (or recommendation) made under section 83(5) of the LG Act must be (and as matter of good governance and best practice, should be) included in the public agenda. This stance is widely accepted without much contention. The recommendation must also include and specify the grounds upon which the council may consider a matter in confidence.

We recommend that:

• listing items under a "Confidential Item" heading in an agenda that is available to the public; and/or
• failing to specify the basis on which a confidential order may be made,

is not sufficient for the purposes of complying with section 83(5), and copies of any documents and reports (which have been supplied to the elected members) relating to those matters are, and should be, made public.

Moving into confidence

Another area requiring attention is the process councils undertake when deciding whether to exclude the public from meetings under the confidentiality provisions.

While the LG Act does not prescribe a specific process for making this decision, it does stipulate the grounds upon which a decision to move into confidence can be made, and requires that the decision is made during a meeting that is open to the public.

In our observations at a council, we noted the following practice and procedure:

• The agenda progressed to the section designated for "confidential items".
• The presiding member asked for a mover "to go into confidence".
• Most (if not all) councillors put their hand up.
• A councillor was identified by the presiding member as the "mover".
• The same process was used to identify a seconder.
• The motion was put for vote, and passed unanimously.

The SA Ombudsman conducted an audit on the use of the confidentiality provisions by councils under the LG Act and it observed flawed procedures and identified that councils were misusing the confidentiality provisions. (Notably, the Ombudsman also considered that councils were overusing the provisions). Although the audit dates back to 2012, the Ombudsman's findings and commentary on this topic remain highly relevant, as evidenced by the practices we recently observed.

"The intent of the Act is to allow discussion of the reasons for exclusion to be made clear to members of the public before their exclusion. On this basis, … passing a ‘procedural decision’ for ‘council to move a motion to go into confidence’, is not in itself sufficient to exclude members of the public. In my view the Act requires that councils openly consider the full resolution proposing an ‘In Confidence’ matter which includes a clear, valid citation of the grounds on which the proposed order is to be made."

[Our emphasis].

In relation to the procedures adopted by the identified council, the motion to proceed "into confidence" was treated merely as a procedural decision, lacking the substantive grounds necessary to justify the exclusion of the public from the meeting. It follows that any subsequent order to receive, retain or consider any information under confidentiality would lack validity. Although the public may have left the chamber at the council's direction, if the council received a request to access documents relating to the three matters "considered in confidence", those documents most likely need to be provided.

It stands that if no section 83(5) CEO indication was made; and/or a council moved into "confidence" to consider an item by passing a procedural decision, all documents and reports relating to those item(s) should, or are likely to be, publicly available.

En Bloc decisions

In our examination of the misuse of confidentiality provisions in the LG Act, one notable practice stands out: the en bloc decision-making process. This is when a council resolves to exclude the public and move into confidence for multiple items at once. This raises potential compliance issues with the LG Act.

While the LG Act does not lay out a specific process for moving into confidence, it does highlight the need for each matter to be given separate consideration under section 90. This implies that en bloc orders to exclude the public are not compliant with the LG Act.

Key considerations are as follows:

Once an item has been considered in confidence and a decision has been made (including a decision as to whether or not the decision and reports will be kept confidential), the meeting is reopened to the public.

Any subsequent items on the agenda which council may consider excluding the public to consider, separate deliberation and a separate decision whether to move into confidence and exclude the public or not is required – even if the same prescribed grounds that applied to the preceding item apply to the subsequent item and the discussions and decision.

The deliberations and decision as to whether to exclude the public from the meeting must occur in a meeting which is open to the public.

Accurate minute-taking

The move towards live streaming of council meetings has been a positive step for transparency. However, we have noticed an unsettling discrepancy between the official minutes of some council meetings and what actually transpires in the live stream.

For instance, the minutes might state that the council followed correct procedures when deciding to exclude the public. But the live stream might tell a different story, showing the council rushing through the process without the necessary debate or consideration.

The Local Government (Procedures at Meetings) Regulations 2013 (SA) require the minutes to be a record of the proceedings, and indeed councils are required, by a resolution at a subsequent meeting, to confirm the accuracy of the minutes.

These circumstances present the following issues:

• The minutes do not accurately reflect the proceedings at the meetings.
• Council has incorrectly confirmed minutes to be correct, when they are not.
• Council may be subject to a report or investigation for undertaking an improper administrative act.

The need for improved confidentiality practices

These issues highlight the need for better education and training for elected members and staff on the use of confidentiality provisions. By improving our understanding and application of these provisions, we can reduce the risk of inadvertent disclosure of confidential information and ensure our council meetings align with best practice standards.

To find out more about the assistance and training we can provide, please reach out at any time.