Use of Confidentiality Provisions
City of Onkaparinga
Council Members Workshop
30 May 2017
Wayne Lines
Ombudsman SA
What we will cover…
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Fundamental principles
The foundational rule
Exceptions that prove the rule
• The straightforward ones
• The more complicated ones
• The troublesome one
Irrelevant considerations
Minutes of the confidentiality order
Questions
Slide 1
Fundamental principles
The use of confidentiality provisions needs to be understood in the context of
principles of local government such as:
• A council is established to act as a representative, informed and
responsible decision-maker in the interests of its community (s6(a))
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The functions of a council include providing for the welfare, well-being and
interests of individuals and groups within its community (s7(c))
A council must provide open, responsive and accountable government, be
responsive to the needs and interests of individuals and groups within its
community and manage its affairs in a manner that emphasises the
importance of service to the community (s8)
Slide 2
Fundamental principles
Code of Practice
Access to meetings and documents 2015
1.1 Principle
The City of Onkaparinga (the Council) supports the principle that the
procedures to be observed at a meeting of Council or a Council Committee
should contribute to open, transparent and informed decision making and
encourage appropriate community participation in the affairs of Council.
However, the Council also recognises that on occasions it may be necessary
in the broader community interest to restrict public access to discussion or
documents.
Slide 3
The foundational rule
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Section 90(1):
‘Subject to this section, a meeting of a council or council committee must
be conducted in a place open to the public.’
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Public meetings are essential to providing open, responsive and
accountable government.
Slide 4
Exceptions that prove the rule
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Section 90(2):
‘A council or council committee may order that the public be excluded from
attendance at a meeting to the extent (and only to the extent) that the
council or council committee considers it to be necessary and appropriate
to act in a meeting closed to the public in order to receive, discuss or
consider in confidence any information or matter listed in subsection (3)
(after taking into account any relevant consideration under that
subsection).’
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Exclusion of the public from a meeting is a significant step to take and has
to be carefully considered and within controlled limits.
Slide 5
The straightforward ones
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Where necessary to protect trade secrets: s90(3)(c)
Matters affecting security and safety: s90(3)(e)
Where disclosure could prejudice the maintenance of law e.g impede
a criminal investigation, deny a person a fair trial: s90(3)(f)
Where necessary to ensure council does not breach any law, order of
a court or other legal obligation: s90(3)(g)
Legal advice: s90(3)(h)
Information relating to litigation or pending litigation involving the
council or council employees: s90(3)(i)
Tenders for the supply of goods or services: s90(3)(k)
Proposed amendment to a Development Plan before public release:
s90(3)(m)
Reviews of council FOI determinations: s90(3)(n)
Slide 6
The more complicated ones
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Where disclosure could confer a commercial advantage on a person
with whom the council is conducting business or could prejudice the
council’s commercial position: s90(3)(b)
Confidential commercial information where disclosure could prejudice
the person who provided the information or confer an advantage on a
third person: s90(3)(d)
Where disclosure would divulge confidential information provided by
or to a Minister or other public authority or official: s90(3)(j)
For all three the information not only has to fit within the description
but disclosure would, on balance, ‘be contrary to the public interest’
Requires weighing up the consequences of disclosure that would be
detrimental to the public interest against the consequences that would
benefit the public interest, such as in:
• Open and accountable government
• Public health and safety
Slide 7
The troublesome one
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‘information the disclosure of which would involve the unreasonable
disclosure of information concerning the personal affairs of any person
(living or dead)’: s90(3)(a)
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Requires two questions to be answered:
• Is the information concerning the personal affairs of any person?
• Would disclosure of that information be unreasonable?
‘personal affairs’ of a person includes financial affairs, criminal
records, personal relationships, personal qualities, health status,
employment records: s90(9)
Query whether the disclosure of personal affairs information would be
unreasonable is given proper consideration when a confidentiality
order is made:
• e.g. the information may already be public or disclosure is unlikely
to cause any harm or reputational damage.
Slide 8
Irrelevant considerations
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Section 90(4): In deciding to consider a matter in confidence it is
irrelevant that discussion of the matter in public may –
• Cause embarrassment to the council, council committee,
members or employees
• Cause a loss of confidence in the council or council committee
• Involve discussion of a controversial matter*
• Make the council susceptible to adverse criticism*
[*Added to section 90(4) by amendment commencing 31 March 2016]
Slide 9
Minutes of confidentiality order
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Section 90(7): an order to exclude the public from the meeting must
be minuted specifying –
• The grounds on which the order was made
• The basis on which the matter falls within the ambit of the
exception relied upon*
• If relevant, the reasons disclosure would be contrary to the public
interest*
[* Added by amendment commencing 31 March 2016]
Section 91(9): an order to exclude the public access to the minutes
must –
• Specify the duration of the order (cannot be extended if the period
has expired) or when it will cease to apply or when it must be
reviewed (no less than annually)
• Be minuted specifying the grounds and the duration
Slide 10
Questions?
The End
Slide 11