Email saga’s lawfulness questioned

"I'm constitutionally outraged – it's not overstating it, it's a real concern..." Dean Knight, senior lecturer in law, Victoria University

A council’s interception of politicians’ emails is a ‘‘constitutional outrage’’, a legal expert says.

Horowhenua District Council chief executive David Clapperton screened emails to both staff and councillors, a leaked draft audit report shows, and there are calls for him to step aside as the matter is investigated.

Victoria University senior lecturer in law Dean Knight said serious alarm bells should ring if it was proven there were practices that obstructed communication between elected politicians and the constituents they were accountable to.

‘‘It’s just astonishing. If it’s the case that the chief executive has been intercepting and/or censoring emails to councillors – especially without their knowledge or consent – I think it’s a real worry. I’m constitutionally outraged – it’s not overstating it, it’s a real concern... it undermines democracy.’’

Knight said a case could be explored for ‘‘flawed action under the Local Government Act’’, or the Ombudsman’s office could consider a complaint on the basis of ‘‘maladministration’’.

Otago University law professor Paul Roth said there were questions about possible breaches of Crimes Act rules about digital communication interceptions and principles of the Privacy Act. ‘‘It is OK to block emails with the recipient’s consent if it is to stop harassment etcetera. However, I’d have to say ... there is a strong possibility that there has been a breach of the Crimes Act.’’

Minister of Local Government Anne Tolley has powers to intervene in councils.

Tolley did not answer specific questions, but said ministerial intervention in local politics would only take place if justification met a ‘‘high threshold’’.

She was following the Horowhenua developments and said officials were working with Local Government New Zealand and the Society of Local Government Managers.

Otaki electorate candidate for Labour Rob Mccann said he had laid a complaint with the Office of the Ombudsman about the email interceptions, as well as the council’s refusal to publicly release the draft internal audit.

He said he was concerned the audit report had not been tabled at the council’s finance committee last month ‘‘due to delaying tactics’’.

He asked that the investigation ‘‘ensure the council is operating in a manner that ensures transparency, that important information has not been withheld from decision-makers, and that staff and councillors are able to function without fear of repercussions’’. He also asked that the findings be publicly released.

Council staff have not replied to direct questions.

Feyen called an extraordinary meeting of the finance audit and risk committee for June 23 to discuss the report under urgency, but only councillor Ross Campbell turned up, so the meeting couldn’t go ahead.

However, council spokeswoman Lacey Wilson said the meeting did not meet the required period for notice. Feyen said there was enough notice.