UPDATED: A CITY OF BALLARAT RESPONSE HAS BEEN ADDED TO THIS STORY
The City of Ballarat has placed a consultative draft of a new 'Public Transparency Policy' on its agenda for Wednesday night's council meeting, in line with the requirements of the Local Government Act 2020.
The state government has described the new Act as 'the most ambitious reform to the local government sector in over 30 years,' adding it will improve local government democracy, accountability and service delivery for all Victorians. The transparency principles, which are derived from s.58 of the Act, must be in place and operating by September.
The principles apply to council information, documents and publications, procedural information, records, data. Council says transparency will be 'a driving principle that will guide the work that we do, the decisions we make and the information we share - in everything that we do.'
Up to a point. There are a series of limitations on 'public interest' and confidentiality, including the too-often relied-upon 'commercial-in-confidence' and it is in dealing with these and how broadly the interpretation is applied that council will stand or fall on its dedication to transparency.
Whether the council has the ability and inclination to fully embrace the principles of transparency and put them into a tangible, accessible and easy-to-access form is the undying and urgent question.
It needs to be remembered City of Ballarat has an unenviable record in making council decisions at meetings in camera or closed to the public, almost three times as high as that of Geelong or Bendigo councils. Its excuse for the secrecy, a rather opaque explanation about increased numbers of contracts, council committees and dealing with blocks of applications, was the kind of response Deborah Glass criticised in a 2016 report.
"Secrecy breeds suspicion," Ms Glass wrote. "Decisions made behind closed doors, not published on council websites or otherwise exposed to the public gaze, make people suspicious about whether the decision was fair or, where money is involved, whether it is a good use of public funds."
One of the dilemmas of all local government is its need for stability and valuing of local knowledge and experience often stand in direct contrast with any willingness to embrace change and express openly how councils work. It's reflected in recent cases both in Ballarat and the wider region.
Another is corruption, allowed to flourish when developers and others who require council approval for building permits, liquor licence applications, changes to usage of a property find it easier to get the ear of a councillor or officer through a direct bribe or more commonly through a network of business 'friendship'.
This kind of corruption is easily enabled when more senior officers are willing to direct juniors to 'turn a blind eye' to infractions; tell them the paperwork is 'not worth the effort'; direct them to obfuscate or improperly record FOI requests or complaints; or 'call in' issues so they can 'deal with it' themselves.
In the Central Goldfields Shire, centred in Maryborough, the failure of councillors to adequately oversee or manage the long-serving CEO Mark Johnston led to widespread abuses of council processes, a sense that jobs were for life and could be treated lightly, and ultimately to the dismissal of an elected council and charges of corruption being proved against Johnston.
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In Ballarat, a series of investigations over decades by the-then Municipal Inspectorate, the Ombudsman and the Independent Broad-based Anti-Corruption Commission has led to a council employee being imprisoned, councillors and a CEO being censured and fined (leading to one of the greatest, most self-serving I WAS MISUNDERSTOOD letters ever published in The Courier), criticism of the diligence of council officers in pursuing fraud and credit card misuse, and condemnation of the city's oversight of procurement.
The most recent Ombudsman's report saw CEO Justine Linley's contract terminated and the long-term director of infrastructure and environment Terry Demeo resign after the state's ombudsman criticised their appointment of senior staff.
The fall-out continues with the two-decade career of chief financial officer and director of business services Glenn Kallio finishing and the pending resignation of another Linley appointee, director of innovation and organisational improvement Cameron Cahill. More will no doubt follow.
Interim CEO Janet Dore has emphasised the council's commitment to an open and clear local government. It is up to her employees, directors and media team to ensure the principles are fully enfranchised and the ratepayers of Ballarat can fully access the decisions and directions of the councillors and executive of the city.
Transparency: council responds
The City of Ballarat has provided an extensive response to questions put by The Courier regarding the adoption of new transparency principles at its July meeting.
1. "Council may refuse to release information if it determines that the harm likely to be created by releasing the information will exceed the public benefit in being transparent." Who are the officers making this determination, what is the process, and will the determination be made public?
The Executive Manager Safety, Risk and Compliance, or his nominee, is responsible for determining whether the release of information would be contrary to the public interest, regarding the following.
- It would be contrary to public interest to release information if the harm to the community likely to be created by releasing the information will exceed the public benefit.
In assessing possible harm from releasing information, the focus is the harm to one or more individuals or the public. Harm to Council (actual or potential) will only be a factor if there is damage to the community, such as where it involves a loss of public funds or prevents Council from performing its functions.
The process to follow in relation to the public interest is set out under the Freedom of Information Act 1982. Items that may be contrary to the public interest may include:
- information which, if disclosed, would result in a breach of law or contractual requirements
- internal working documents, including drafts, which have not been approved or submitted to Council, especially where release may mislead the public
- information or directions to Council staff regarding negotiations in contractual or civil liability matters, where release may damage Council's capacity to negotiate the best outcome for the community; and
- correspondence with or information about members of the public or otherwise, where release may inappropriately expose a person's personal information or private dealings with Council.
2. How will council, as per s.58 of the Local Government Act, respond when they decide... proposed transparency means they cannot release information, but find it would go against public interest of s.58 not to release something, perhaps redacted, rather than the all-or-nothing approach of releasing documents?
When assessing whether to release information, Council will consider both the principles in the Local Government Act 2020's Section 58 and the definition of confidential information outlined in section 3.
The public interest test aligns with the Freedom of Information Act 1982, and therefore is subject to the same provisions as outlined in the response to Q1. The Public Transparency policy outlines a variety of ways information can be accessed including a formal request under FOI, where such a request allows for informal and formal release of information that may be redacted in part or full.
3. Council has been the subject of IBAC and ombudsman investigations in recent times, with the imprisonment of a council employee for fraud, criticism by both IBAC and the ombudsman of council's ability, directness and willingness to comply with investigations, the loss of a CEO and director, and the appointment of a review officer. Will council acknowledge its commitment to transparency has been incomplete? What arrangements are being made to ensure council complies with the letter AND the spirit of the Act?
Council has always maintained a commitment to transparency as outlined in the Council Plan 2017-2020.
Council has at all levels worked and complied with requests of integrity agencies during investigations. Furthermore, Council has considered all findings and recommendations and implemented all recommendations.
The implementation of the overarching Governance Rules and supporting Public Transparency principles contained within the Local Government Act 2020 require Council to not only have a process for their application, but how they are incorporated into Council decision making processes.
These include the release of the draft policy that will be followed by implementation, with specific training for Council and officers on their application when making decisions.
Council has taken the proactive position of putting both the Governance Rules and the Public Transparency Policy out for public consultation when the only statutory requirement was for the governance rules to be developed through community engagement.
4. The proposed arrangement for handling appeals regarding FOI and public interest disclosure appeals is via Cameron Montgomery. Janet Dore and Sean Portelli are the other two referees for this matter, thus keeping all appeals in house. Why has council not considered an independent-of-council referee?
There is no internal appeals process for FOI decisions as they are prescribed within the Freedom of Information Act 1982. Public Interest Disclosures are separate to an FOI appeals process as outlined above. The provisions provided under Public Interest Disclosure provide an avenue for the public or officers to raise alleged corruption that could amount to improper conduct. Where it is deemed appropriate, the disclosure of the matter must be referred to IBAC.
5. Has the council, at any point, instructed its compliance staff to investigate matters and either remove file notes from cases, or not to record notes at all? Were compliance matters taken from officers and handed to former director Terry Demeo to deal with?
Former Director Demeo's portfolio included regulatory compliance function. As such, it would have been normal business function for many compliance matters to be escalated to the director level for action, including, but not limited to a review of appeals.
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