Official Information Request - Public Excluded items on 24 November 22

Sent: Friday, 9 December 2022 8:42 am
Subject: Official Information request - Public Excluded items on 24 November 2022

I refer to your online Official Information request of 28 November 2022 regarding the items discussed in Public Excluded on 24 November and requesting identification of the public interest considerations; the section 7(2) interests in favour of withholding the information; and the assessment of the relative weight of the competing interests and decision on whether the public interest in disclosure outweighs the need to withhold.

The items were:

• Contract 22/103: Maleme Road Seal Extension
• Industrial Land Development
• Rotorua Housing Accord

The circumstances in which Council may resolve to exclude the public are set out in section 48 of the Local Government Official Information and Meetings Act 1987(‘ LGOIMA’). One of these circumstances is when public conduct of the meeting would likely result in the disclosure of information for which there would be good reason to withhold under section 7 (section 7(2)(f)(i), [‘free and frank’] is the only exception). The public interest test is baked into section 7(1), which sets out that the reasons in the section are good reasons for withholding information unless the withholding is outweighed by other considerations which render it desirable, in the public interest, to make the information available.

The good reasons for withholding are exhaustively listed in LGOIMA, but ‘public interests’ are not defined but have been interpreted as including; transparency, participation and accountability, amongst other things.

The public interest test in section 7(1) consists of three steps:

• Identify the reason for withholding;
• Identify the public interest in favour of disclosing the information; and
• Assess the relevant weight of competing interests and decide whether the public interest in disclosure outweighs the need to withhold. (If the factors for and against the disclosure are evenly weighted then the information may be withheld).

Council officers consider this test when recommending that the public be excluded from discussions on a particular item, and elected members consider it when they are adopting the resolution to move into public excluded. However, LGOIMA does not require the local authority to explicitly record the decision-making for applications of the public interest test. The factors for and against the release of information or the exclusion of the public do not need to be formally documented, scored, and weighted.

From an operational point of view, any decision to exercise the power to exclude the public from a meeting is subject to a robust internal process. The decision is made by elected members by way of resolution, after considering an officer’s recommendation. The officer’s recommendation is reviewed by the Chief Executive and the Executive Team before it goes to elected members, but the decision to exclude the public is not made by the Chief Executive or by officers alone. Any recommendations on proposed resolutions to exclude the public are also discussed with the Chair and Deputy Chair at their pre-meeting run-through with staff. The proposed exclusion of the public is foreshadowed in the pre-circulated agenda and any deliberation on the resolution is required to be discussed during the public section of the meeting. All of the steps that lead up to elected members considering a resolution to exclude the public means that the vast majority of these resolutions are passed.

In some instances, such as on 24 November, there is discussion during the public session about why the public is to be excluded despite an acknowledged legitimate public interest. These discussions are part of the decision-making for the purposes of the public interest test. Any resolution to exclude the public must include reasons, including the particular interest or interests protected by section 6 or section 7 of this Act. Where the resolution is passed without amendment, it can be assumed that the reasons given in the officer’s report are adopted as the reasons for the decision.

In many circumstances, Council will seek to release information related to public excluded items as soon as possible once the reasons for withholding expire. This is how the balance with the public interest is struck.

Following are the reasons under section 7(2) for the three items being considered in public excluded session:

It was resolved at the meeting that the minutes relating to these items will be released as follows:

Additonal response:

I refer to your further correspondence of 18 December 2022 addressed to CE Geoff Williams regarding application of the Public Interest Test. As advised earlier, Council is not required to explicitly record the decision-making for applications of the public interest test. The decision on whether an item is heard in confidence goes through a number of steps where all parties consider the Public Interest Test. These are:

• By the officer writing the report
• By the Chief Executive and Executive Team when reviewing the report
• By the Chair/Deputy Chair of the respective committee at their pre-meeting run-through with staff
• By all elected members of the committee when discussing the resolution to go into confidential

At any of the above stages, a decision could be made to consider the item in the public session, bearing in mind the public interest versus the reasons for withholding the information under section 7 of LGOIMA.

With particular reference to the items discussed in Public Excluded on 24 September, specifically:

1. Contract 22/103: Maleme Road Seal Extension
2. Industrial Land Development
3. Rotorua Housing Accord

It was considered by the above officers and elected members that the items be heard in confidence (under the section 7 clauses of LGOIMA as previously provided to you on 9 December 2022), for the following reasons:

Contract 22/103: Maleme Road Seal Extension

As advised in response to an earlier LGOIMA request in February, the approval of contracts is considered in confidential in order for Council to consider all the tenders received for each contract and make a decision in the best interests of ratepayers. To ensure the best outcome for ratepayers, Council believes it is prudent for tenderers not to see the tender prices submitted by competitors. The minutes of these items are released once the successful and unsuccessful tenderers have been advised.

Industrial Land Development

Council is in discussions with parties to support the development of land for industrial use. It is considered the confidentiality of the external parties involved outweighs the public interest until these parties have finalised negotiations between themselves.

Rotorua Housing Accord
Mayor Tania Tapsell provided a comprehensive explanation of why this item was to be heard in confidence. Please refer to the recording of the meeting on Council’s website (43:35 minutes).

You have the right to seek an investigation and review by the Ombudsman of this decision. The Ombudsman’s Office can be contacted by calling 0800 802 602, emailing info@ombudsman.parliament.nz, online at www.ombudsman.parliament.nz, or by post to The Ombudsman, PO Box 10152, Wellington 6143.

Publication of responses to LGOIMA requests

Please note: Our LGOIMA responses may be published on the Rotorua Lakes Council website after they have been responded to, with requesters’ personal details withheld. If you have any concerns about this please contact the Council on info@rotorualc.nz.

Regards