Use of Confidentiality Provisions

2. Use of Confidentiality Provisions City of OnkaparingaCouncil Members Workshop30 May 2017 Wayne Lines Ombudsman SA

3. What we will cover… • 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

4. 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)) • 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

5. 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

6. The foundational rule • 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.’ • Public meetings are essential to providing open, responsive and accountable government. Slide 4

7. Exceptions that prove the rule • 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).’ • 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

8. The straightforward ones • 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)

9. The more complicated ones • 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

10. The troublesome one • ‘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) • 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.

11. Irrelevant considerations • 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]

12. Minutes of confidentiality order • 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

13. Questions?The End Slide 11