Elected Members’ access to council information

LG Leader November 2017

The issue of an Elected Members’ “right” to access council information is an issue that is regularly raised with us.

The starting point is always section 61 of the Local Government At 1999, which prescribes that a member of a council is entitled at any reasonable time, in connection with the performance or discharge of the functions or duties of the member, to have access to any relevant council document (without charge). That is, Elected Members do not have unfettered access to council documents, but are entitled (at a reasonable time) to have access to relevant council documents in connection with the performance or discharge of their functions or duties.

Section 61 (1)(a) – (c) sets out a non-exhaustive list of the relevant documents that may be sought. Reference to “a copy” of a document in that subsection is restricted to “a copy of a written contract” or “a copy of a document relating to a contract” proposed to be entered into. Section 61 (2) provides that a request for access to a document should be directed to the CEO (or another officer specified by the CEO). The CEO (or other officer) in providing access to a document, may indicate to the Member that information contained in the document is, or should be considered as, confidential. This provision is now even more important given the introduction of Section 62(4a) which creates the offence for a breach of a confidentiality order.

Accordingly, Elected Members have access (without charge) to any relevant council document, however, access must be sought in connection with the performance or discharge of the functions or duties of the Member. Of course, the functions and duties of a Member are primarily identified at sections 58 and 59 of the LG Act which, necessarily require consideration of (and consistency with) the functions of a council as set out at section 7 of the LG Act.

As the statutory framework demonstrates, councils, as public authorities undertaking public functions with public resources, have a legal duty to have regard to issues of community interest. In turn, Elected Members, as members of the governing body of the council, are subject to statutory and other fiduciary duties to ensure that their behaviours and decisions are consistent with the legal obligations of the council. Consistent with this situation, the LG Act does not provide an unfettered right for Elected Members to seek access to any information at any time. It also does not require that in all circumstances access be in the form of the provision of copy documentation. Rather, the LG Act qualifies the information access rights of Elected Members to matters that are relevant to the performance and discharge of their functions and duties. For the avoidance of doubt, where documents (or information) is made available to one Elected Member, it is our advice that for reasons of transparency, accountability and informed decision making, the same offering should be made to other Elected Members.