Bat­tle over the right to know

Central Leader - - NEWS -

When you vote for some­one to be your voice at the Auck­land Coun­cil, do you ex­pect them to be blocked from do­ing what they and you see as their duty?

Top level Auck­land Coun­cil ex­ec­u­tives are bat­tling with a se­nior coun­cil­lor who wants ac­cess to a so­far undis­closed re­port. It deals with le­gal as­pects of the vexed uni­tary plan re­port which is cer­tain to be­come a ma­jor pub­lic is­sue well be­fore polls close on Oc­to­ber 12.

The in­ner sanc­tum rum­pus be­gan when vet­eran lo­cal body per­son San­dra Coney asked coun­cil of­fi­cers for a copy of some­thing which sounds ex­tremely dull but which has be­come very in­ter­est­ing in its ab­sence – a le­gal re­view of the coun­cil’s con­tro­ver­sial uni­tary plan.

The plan is a road map on Auck­land’s slow march to­wards fa­cil­i­ties for a pop­u­la­tion of a mil­lion.

First out­come: Coun­cil chief plan­ning of­fi­cer Dr Roger Blake­ley said a fairly elab­o­rate ‘‘no’’ – that even as a mem­ber of the coun­cil plan­ning com­mit­tee Ms Coney had no right to ac­cess. In fa­mil­iar lo­cal body jar­gon, he said: ‘‘There is a prin­ci­ple here about the re­spec­tive roles of gov­er­nance and man­age­ment. Man­age­ment of any coun­cil has the re­spon­si­bil­ity to en­sure that high qual­ity, ev­i­dence-based, legally ac­cu­rate ad­vice is given to the gov­er­nance body.

‘‘The gov­er­nance mem­bers (coun­cil­lors) have the re­spon­si­bil­ity to make de­ci­sions. You quote sev­eral clauses from the Lo­cal Govern­ment Act re­lat­ing to the obli­ga­tions of coun­cils to con­duct their busi­ness in an open, trans­par­ent and demo­crat­i­cally ac­count­able man­ner. But that refers to the process of de­ci­sion-mak­ing by the lo­cal au­thor­ity.

‘‘The is­sue here is about a le­gal re­view as a tech­ni­cal in­put to en­sure ac­cu­racy of ad­vice that comes to elected mem­bers.

‘‘Your re­quest ap­pears to con­fuse those clear lines of re­spon­si­bil­ity. You ap­pear to be ask­ing for a re­port which is part of man­age­ment’s re­spon­si­bil­ity of en­sur­ing that the ad­vice that comes to the gov­er­nance body is thor­oughly tested and ac­cu­rate. Ac­cord­ingly, we will not be re­leas­ing the le­gal re­view.’’

Not sur­pris­ingly, San­dra Coney wasn’t put off. She has al­ways been a chal­leng­ing op­po­nent in causes she be­lieves in – and takes no pris­on­ers. Lo­cal govern­ment of­fi­cers would do well to study her CV. She had a ma­jor role in the cam­paign in the 1980s ex­pos­ing National Women’s Hos­pi­tal se­cret ex­per­i­ments on pa­tients, the in­fa­mous ‘‘Un­for­tu­nate Ex­per­i­ment’’, later con­firmed by the Cartwright Com­mis­sion of In­quiry.

Ms Coney has been equally hard­work­ing, in­quir­ing and con­struc­tive dur­ing her 12 years rep­re­sent­ing Waitakere – as a city and Auck­land re­gional coun­cil­lor, par­tic­u­larly in de­fence of the en­vi­ron­ment, notably her much-loved Waitakere Ranges.

Few lo­cal body mem­bers read their meet­ing’s ad­vanced agen­das as closely and as well as she does. And few are as con­sis­tent and as vig­or­ous as she is on her right – and your right – to know. I know be­cause we sit along­side each other on the Waitem­ata Dis­trict Health Board and of­ten share a view­point.

Our place­ment is co­in­ci­den­tal – based solely on the al­pha­bet, Booth af­ter Ab­bott and be­fore Coney.

Un­fazed by that first re­fusal, she pressed on: ‘‘You seem to think you can judge what is nec­es­sary for me to gov­ern. This is fun­da­men­tally wrong. The leg­is­la­tion charged elected peo­ple with the re­spon­si­bil­i­ties and ac­count­abil­ity to gov­ern well, not the man­age­ment.’’

The coun­cil heav­ies gave Roger Blake­ley sup­port. Chief ex­ec­u­tive Doug McKay and gen­eral coun­sel Wendy Bran­don backed his re­fusal.

‘‘It’s a man­age­ment mat­ter, not gov­er­nance. We have a duty to en­sure ad­vice we give is legally and tech­ni­cally ac­cu­rate.

‘‘The le­gal ad­vice will also be pub­licly avail­able as part of the sec­tion 32 anal­y­sis that the coun­cil is re­quired to pro­vide to the min­is­ter for the en­vi­ron­ment be­fore the pro­posed uni­tary plan can be no­ti­fied.

‘‘The in­for­ma­tion at dis­pute here is not de­signed to as­sist your de­ci­sion-mak­ing, nor was it com­mis­sioned for that pur­pose, as I have pre­vi­ously ad­vised you, and I de­cline your re­quest to ac­cess it.’’

The Coney reaction: ‘‘I would have thought a sec­ond tier man­age- ment de­ci­sion to de­cline a coun­cil­lor ac­cess to doc­u­ments held in the or­gan­i­sa­tion would be of in­ter­est to you. I have been fol­low­ing the sit­u­a­tion of Christchurch City Coun­cil. There the coun­cil seems to have got it­self into trou­ble by re­ly­ing on the re­as­sur­ances of the CEO.

‘‘With­out wish­ing to make a di­rect par­al­lel, my re­quest should be in­ter­preted as the wish of an elected mem­ber to see for her­self, rather than rely on man­agers. I think there are lessons for all elected mem­bers in the po­si­tion that the elected Christchurch City Coun­cil finds it­self in, or rather, has put it­self in. In rep­re­sent­ing my con­stituents and the pub­lic, I should not be ex­pected to rely on man­agers’ views or ad­vice, rather than pri­mary re­ports, and I am sur­prised you would think this is ad­e­quate …’’

And she reached for a le­gal opin­ion – from lawyer and lo­cal govern­ment ex­pert Dr Grant Hewi­son.

His opin­ion: As a mem­ber of the Auck­land Plan com­mit­tee con­sid­er­ing the uni­tary plan, she was en­ti­tled to have ac­cess to the le­gal re­view, Dr Hewi­son said.

He backed this with a House of Lords judg­ment that ruled: ‘‘Coun­cil­lors should have ac­cess to in­for­ma­tion nec­es­sary to prop­erly dis­charge their du­ties un­der what is known as the need-to-know test’’ – a prin­ci­ple ruled on by the House of Lords and ap­plied by the Om­buds­man in New Zealand.

Dr Hewi­son said that as a coun­cil­lor Ms Coney had a duty to as­sure her­self the plan was legally cor­rect. ‘‘In light of the ‘ need-to-know prin­ci­ple’, in our opin­ion as a mem­ber of the Auck­land plan­ning com­mit­tee you are en­ti­tled to have ac­cess … as­sist­ing your­self to be sure that the plan is legally cor­rect … this is a proper dis­charge of your du­ties.’’

Chief ex­ec­u­tive Doug McKay: ‘‘I dis­agree with Grant Hewi­son … Roger, Wendy and I have con­sid­ered each of your re­quests and signed off on the re­sponses. It is not a de­bate I wish to swap in­ter­pre­ta­tions on … If you re­main un­happy with this po­si­tion then I sug­gest we take it to the Om­buds­man as it is an im­por­tant point of prin­ci­ple for us and clearly for you too.’’

In­ter­est­ingly, for­mer Om­buds­man Sir Brian El­wood once de­fined the need-to-know test as a coun­cil­lor be­ing en­ti­tled to all rel­e­vant in­for­ma­tion on which to make in­formed judg­ments.

Ms Coney couldn’t have said it bet­ter. Sig­nif­i­cantly, in Oc­to­ber, she will be a can­di­date for the Waitakere Ranges Lo­cal Board and not the Auck­land Coun­cil.

When I asked if the uni­tary re­port is­sue had been a fac­tor in that de­ci­sion, there was a long si­lence, then … ‘‘It’s true that I’ve strug­gled with the coun­cil cul­ture …’’ Read­ing those emails, who could blame her? It’s the coun­cil and ratepay­ers’ loss.

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