The following is extracted from the document published by the Office of the Ombudsman available here. It may be worth reviewing the practices of certain authorities and local boards in the light of what is regarded as compliant practice.
The LGOIMA contains an entire part—Part 7 —of nine sections dedicated to the conduct of meetings by local government and other specified agencies. The purpose of Part 7 is to ‘promote the open and public transaction of business at meetings of local authorities’ in order to enable effective public participation in decision making and promote accountability.71With some exceptions, it requires that:
- meetings are publicly notified;
- agendas,reportsand minutesare publicly available;
- meetings are open to the public, unless there is good reason for excluding them.
The public has high expectations about the open and transparent conduct of local government meetings. If a member of the public is dissatisfied with an agency’s actions in this regard, there are some decisions they can ask the Ombudsman to investigate.
What meetings are covered?
‘Meeting’ is defined in the LGOIMA as:
- any annual, biennial, triennial,ordinary, special or emergency meeting of an agency.
- any meeting of a committee or subcommittee of an agency that has been given any ‘function, duty or power’ either: directly by an enactment; or by the agency, which itself has been given the function, duty or power by or under an enactment or bylaw.
However, any meeting at which no resolutions or decisions are made is not a ‘meeting’ for the purposes of Part 7 of the LGOIMA.
There is nothing to prevent agencies holding ‘workshops’ on an issue. However, the meetings requirements in the LGOIMA cannot be avoided just by calling what is really a meeting a ‘workshop’. Decisions and resolutions cannot lawfully be made outside the context of a properly constituted meeting. Workshop participants should be careful to ensure they do not take any action where compliance with the meetings requirements of the LGOIMA becomes necessary. Agencies should also be aware that holding workshops can create a perception that an issue has been predetermined when it is subsequently brought to an open meeting for deliberation and decision. People have high expectations that local government agencies will conduct their business in an open and transparent manner, and they are likely to be suspicious and unhappy if agencies make excessive use of closed workshops to discuss issues. Agencies should ensure accurate records are kept of workshops. This will help them to comply with their Public Records Act 2005 requirement to create and maintain full and accurate records of their affairs, in accordance with normal, prudent business practice. It will also provide helpful evidence if there is later a dispute about whether a workshop was in fact a meeting. Agencies should also be aware that information generated in, or presented to, a workshop, may be subject to a request under the LGOIMA.
Notification of meetings
Generally speaking, meetings must be publicly notified in advance. Public notification means notification in a local newspaper, or where none exists, by posting notices in public places.76Nowadays, most agencies will also post notice via their websites.
* Each month, agencies must give public notice of the dates, times and places of meetings to be held the following month. This must be done no more than 14 calendar days and no less than 5 calendar days before the end of the month.
* Meetings held on or after the 21stof the month can also be publicly notified 5–10 working days before they are held.
If extraordinary meetings cannot be notified in the usual way, then notice must be given ‘as soon as practicable’ before they are held, or if that cannot be done, then ‘as is reasonable in the circumstances’.
Meetings will not be invalid for lack of notice.80However, where an agency becomes aware of any failure to comply with the notice requirements, it must give public notice of that failure, including the reasons for the failure, and the general nature of the business transacted at the meeting.
Availability of agendas and reports
Meeting agendas and associated reports must be available free of charge at least two working days before a meeting. The LGOIMA gives the public a right to inspect these papers free of charge, and a right to request copies on payment of ‘the prescribed amount’. However, as no amount has ever been prescribed, copies must be made available free of charge. Nowadays, most agencies will make agendas and reports available via their website. Agendas and reports of extraordinary meetings must be made available as soon as is reasonable in the circumstances.
Can an agency deal with items that are not on the agenda?
Agencies can deal with items not on the agenda, provided they’re prepared to make a resolution to that effect, and provided the chairperson explains during open session:
* why the item is not on the agenda; and
* why discussion cannot be deferred for a later meeting.
Agencies can also discuss minor matters relating to general business that are not on the agenda. However, the chairperson must explain this at the beginning of the meeting when it is open to the public, and the agency is prevented from making any resolutions, decisions or recommendations about the matters, other than to refer them to a subsequent meeting for further discussion.
Agenda items where the public will be excluded
Agendas must indicate the items an agency reasonably expects to discuss with the public excluded. Information may be excluded from reports that a meeting is expected to discuss with the public excluded.
Public access to meetings
Local government meetings must be open to the public unless a resolution to exclude the public is passed. The ‘public’ in this context includes bona fide members of the news media, who are entitled to attend meetings for the purpose of reporting the proceedings. A resolution to exclude the public may apply to the whole or a relevant part of a meeting.
Grounds for excluding the public
The grounds for excluding the public from meetings are as follows.
* Public conduct of the meeting would be likely to result in disclosure of information there would be good reason to withhold under sections 6 or 7 of the LGOIMA, except section 7(2)(f)(i)(free and frank opinions).
* Public conduct of the meeting would be likely to result in disclosure of information which would be contrary to an enactment, or constitute contempt of Court or of the House of Representatives.
* The purpose of the meeting is to consider an Ombudsman’s recommendation under the LGOIMA.
* If it is necessary to enable an agency to deliberate in private on its decision or recommendation in proceedings:-where there is a right of appeal to a court or tribunal against the agency’s decision; -where the agency is required by an enactment to make a recommendation;-in relation to an application or objection under the Marine Farming Act 1971.
Process for excluding the public
A resolution to exclude the public must be made when the meeting is open to the public. It is required to follow a set form, as provided for in Schedule 2A of the LGOIMA. It must state:
* the general subject of any matters to be considered while the public is excluded; and
* the reason for passing the resolution, including (where applicable) the particular interest(s) requiring protection under sections 6 or 7 of the LGOIMA.
Copies of the resolution must be available to members of the public who are present, and form part of the minutes of the meeting.
Free and frank discussions
Agencies are explicitly prevented (§7(2)(f)(i) LGOIMA) from excluding the public from meetings to enable ‘free and frank' discussions. Members are elected to provide a voice for their community, in much the same way that members of the national parliament are. You would not expect them to be any less free or frank for the fact that they must voice their opinions in public.
Public access to minutes of meetings
The LGOIMA gives the public a right to inspect meeting minutes free of charge,and a right to request copies on payment of ‘the prescribed amount’. However, as no amount has ever been prescribed, copies must be made available free of charge. Nowadays, most agencies will make meeting minutes available via their website.
Can minutes of public-excluded sessions be withheld?
Not necessarily — and not just because they record public-excluded business. The LGOIMA says that any request for minutes of public-excluded sessions must be dealt with as a request for official information made under the Act.That means the minutes must be made available on request unless there is a good reason for withholding them under the LGOIMA. Just because an agency considered there was good reason to exclude the public from its deliberations at a particular point in time, doesn’t mean there will always be good reason to withhold the minutes of those deliberations. Time passes, and things change. Therefore, each request for public-excluded minutes must be considered on its own merits. The actual content of the minutes should be assessed, and a decision taken whether there is good reason to withhold parts or all of them. That decision must comply with the requirements of the LGOIMA (see communicating the decision).