Battle over the right to know
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.