Unbiased Officer Reports

Mr. Joe Lenzo, a resident of Safety Beach, asked the following question: “Are officers expected to give balanced and impartial reports pointing out pros and cons of an issue or only to present a report that supports their not so hidden objectives so that the Council votes the way the officers think they should?”


The question was answered at the meeting by Dr. Michael Kennedy OAM, Chief Executive Officer who responded that yes, officers are expected to give impartial advice to Council, reflecting their technical expertise (Planning, Road Safety, Finance etc.). Sometimes that advice is very firmly based in legislation (e.g. Planning Scheme), sometimes advice is more value based. Officers should be unconcerned with what Council decides (‘professionally indifferent’). Officers provide advice, Council makes decisions and officers implement whatever Council decides.
________________________________________
The question above becomes very important when linked to the question that was not considered: Mr. Joe Lenzo, a resident of Safety Beach, asked a question which was not accepted as it did not meet Public Question Time guidelines.


The Question Was:
Please explain how after presenting a report so biased against recording minutes that Mr. Noel Buck: Manager Governance & Corporate Support, Mornington Peninsula can be considered to have no direct or indirect interest when his comments will be recorded and we will have the ability to challenge his comments?


This question was directed at the biased report (see below) presented by Mr. Noel Buck: Manager Governance & Corporate Support, Mornington Peninsula Shire to the councillors in relation to recording council minutes. I challenge you to, after you read this report, to point out any indication of a fair and balanced (impartial advice) report.


My original intent was to highlight some of the more obvious prejudices but each time I try to read it I become nauseated and have to stick my finger down my throat. I am confident that you will see the predisposition of this report without my help.

============================================================================

REPORT TO Council Meeting ITEM NO. 2.4
MEETING DATE Tuesday, 13 March, 2012
SUBJECT Audio Recording of Council Meetings
PREPARED BY Noel Buck, Manager – Governance and Corporate Support
AUTHORISED BY Director – Sustainable Organisation
FILE NO. 11-017249
ATTACHMENT(S) NO


This report responds to an item of Urgent Business considered at the Council meeting of 14 November, 2011, where Council requested a report be provided on issues relating to the recording, by members of the public and/or Council, of Council meetings.

The report will address the issues Council needs to consider in reaching its decision:

• Risk Management:
- Defamation;
- Infringement of Copyright;
- Breach of privacy/disclosure of personal information; and
- Publishing of offensive material.
• Costs of implementing;

• Distribution of recordings;

• Local Law implications; and

• The Public Question Time process, as an associated issue to recording of meetings.

The report recommends that Council, having considered the issues contained within the report,
determines whether Council meetings will be recorded, and if so, the extent of the distribution of those
recordings.


BACKGROUND

Council, at its meeting on Monday, 14 November, 2011, under Urgent Business, resolved as follows:

“ That a report be provided to Council as soon as possible outlining the pros and cons of audio recording Council meetings, including relevant experience in other municipalities. The report is to also canvas legal ramifications and costs.”

DISCUSSION

Local Government Act 1989 – Minutes of Meetings

Section 93 of the Local Government Act 1989 (as amended) provides the following:

(1) The Council must keep minutes of each meeting of the Council.

(2) The minutes of a Council meeting must be submitted to the next appropriate
meeting of the Council for confirmation.

(3) The Chairperson of a Special Committee must arrange for minutes of each
meeting of the Committee to be kept.

(4) If subsection (3) applies, the Chairperson must submit the minutes of a
Committee meeting to the next meeting of the Committee for confirmation.

(5) If the minutes are confirmed, the Chairperson at the meeting must sign the
minutes and certify that they have been confirmed.

(6) The minutes of a meeting of the Council or a Special Committee must –

(a) contain details of the proceedings and resolutions made;

(b) be clearly expressed;

(c) be self-explanatory; and

(d in relation to resolutions recorded in the minutes, incorporate relevant
reports or a summary of the relevant reports considered in the decision
making process.”

It is emphasised that Council decisions are expressed through resolutions recorded in the minutes, and what is said by officers, Councillors or others in the lead-up to Council voting on a motion before it, has no impact on the formal Council decision. This is an important point to consider when deliberating on the merits of audio recording of meetings.

Historically, Councils made audio recordings of their meetings for the purpose of verifying the accuracy of the minutes (i.e. formal decisions) of meetings. There has been no recording of Council meetings at Mornington Peninsula Shire.

Policy

In addition, Council’s ‘Recording of Council and Council Committee Meetings Policy’ applies, which specifies procedures for recording meetings. The policy provides:

“ Policy: 1. That any person who wishes to record the whole or part of the proceedings of any Council or Council Committee meeting first obtain permission from the meeting.

2. That this Policy shall not apply to Council staff recording the proceedings of meetings for the purpose of minute preparation.

Procedure: Any person wishing to record the whole or part of the proceedings of a meeting must, at the commencement of the meeting, request permission of the Chair of
their intention.

The Chair of the meeting will seek a decision from the meeting on the matter and advise the person of the decision.”

Audio Recording – Other Municipalities

Research of Council websites does not reveal large numbers of Councils audio recording and
distributing the proceedings of Council meetings.

The City of Frankston audio records its Council meetings and makes available, via CDs, the recordings of those meetings. The City of Frankston’s website has the following process available for requesting audio recordings of Council meetings on CDs.

“ Members of the public can request an audio recording of a Council meeting on CD. This new initiative is to increase the accessibility of Council meetings for those unable to attend in person.

Recordings of Council meetings will be retained for three months only.

On completion of the required details on the required form, a CD will be mailed to the person at the nominated address. Please allow up to ten working days for the CD to arrive.

Please note that the audio recordings do not constitute an official record of the meeting. The official record of a Council meeting is the Council meetings minutes, which can be accessed on Council’s website or upon request to Council’s Governance unit.”

If Council resolves to audio record Council meetings and determines to make these available to the public on request, then it is suggested that a similar process be followed.

Risk Management

Council’s insurers Liability Mutual Insurance advises that the following identified risks can occur by the provision of audio recording or web cast of Council meetings. Those issues include:

• Defamation:

- Council and Councillors may be liable for defamatory statements made by Councillors
and the public during a Council meeting. Council’s liability is increased if those
statements have a wider audience by distribution of audio recordings; and

- Defamation occurs when statements are made about a person, which causes injury to that
person’s reputation. A defamatory statement can be in written or in verbal form.

Note: Insurance cover under Council’s public liability/professional indemnity policy, and the Councillors and officers liability insurance may apply in relation to defamation, libel or slander. There are exclusions in both policies to claims if the comments were intentional, reckless, dishonest or malicious.

• Infringement of copyright:

- Infringement of copyright occurs when a person uses copyright material without the
consent of the owner and the use contravenes one or more of the exclusive rights of the
owner; and

- If someone at a Council meeting reads material subject to copyright, without the consent of the copyright owner, the person may have violated the copyright owner’s exclusive right to reproduce the material.

• Breach of privacy/disclosure of personal information:

- Councils are required to comply with the information privacy principles contained within the Information Privacy Act. Councils may be liable for breach of the privacy principles if Councillors or Council officers are found to have used or disclosed personal, health or sensitive information about individuals during the Council meeting, and that information is published.

Liability Mutual Insurance recommends that Council monitor and edit the content where required. This however may not meet Council’s aspirations if it determines to proceed with the distribution of audio recordings. It is pertinent to note however, that the distribution of audio recordings of Council meetings via CD, the internet or by any means, puts Council at increased risk in relation to possible claims for defamation, infringement of copyright, breach of privacy/disclosure of personal information
and publishing of offensive material.

Council meetings are an open forum of statements, questions and answers, and occasionally statements are made that may be regarded as offensive or defamatory. Those statements could also be challenged as being biased and fall within the apprehended bias rules that Councillors need to be mindful of in reaching their decisions. When such statements are made during a Council meeting, the potential for damage is confined to those people in attendance at the meeting. However, if a recording
of the meeting is available, the potential audience is larger, and this increases both the likelihood and the severity of potential liability.

Risk Management (Cont’d)

There could also be privacy issues associated with the publication of any recording of members of the public sitting in the gallery or making submissions.

Written consent may need to be obtained from all persons captured in the recording. This should not apply to the Mornington Peninsula Shire as this report considers only the audio recording of ordinary Council meetings and does not extend to Council’s other Special Committees. The major privacy issue relates to the Public Question Time segment, where the names of the people asking questions are disclosed and then published to a wider audience.

Distribution of Recordings

If Council resolves to proceed with the provision of making audio recordings available to members of the public, then it is suggested that a similar process to that being used at the City of Frankston be
adopted.

Local Law Review

To ensure that the rights of individuals (including members of the public, Councillors and officers) are not compromised by the unauthorised recording of Council meetings, Committee meetings and
Assemblies of Councillors, it is proposed that Council meeting’s Local Law includes the following:

“ Unauthorised Recording of Council Meetings, Committee Meetings and Assemblies of Councillors

1.1 A person may, in accordance with any policy adopted and published by Council from
time to time, apply to the Chairperson of a Council Meeting, Committee Meeting or Assembly of Councillors, for permission to make an audio or video recording of the
meeting.

1.2 The Chairperson may give permission with conditions or refuse to give permission.”

1.3 A person must not, without first obtaining the Chairperson’s permission under
sub-clause 2, and complying with any conditions imposed by the Chairperson under that sub-clause 2, make, or cause to be made, an audio or video recording of a meeting of:

(a) the Council; or (b) a Committee of Council; or (c) an Assembly of Councillors.

Penalty: 10 Penalty Units

1.4 If a person breaches sub-clause 3, and:

(a) discloses;(b) publishes;(c) otherwise conveys; and/or (d) permits or causes the disclosure, publication or conveyance of,
the information obtained in breach of sub-clause 3 of this Local Law, he or she will also be guilty of an offence under this sub-clause 4.

Penalty: 20 Penalty Units”

Costs

The cost of implementing such a recording system is estimated to be around $4,000-$5,000. This cost is essentially for the purchase of audio recording equipment, which automatically copies recorded audio from the hard disk drive of the equipment to a DVD/CD. Depending on the level of take-up
from the community, it is not considered that additional costs such as the purchase of compact discs or time taken to produce the discs and mailed to recipients will be onerous. No provision has been made in the current Budget for such an expenditure, but if Council is to resolve that this should occur, it could be funded as an over expenditure of the Budget.

Other Matters

If Council is to proceed with the recording of Council meetings and making those recording available for public distribution, appropriate signage would need to be placed at each Council meeting, and an advice placed in each agenda advising of the recording and subsequent distribution of the proceedings of the meeting.

Public Question Time

Some attendees at Council meetings have expressed concern that their questions have not been accurately answered, or accurately recorded in the minutes of the meeting (i.e. minutes do not reflect every word said in response by the Mayor/Councillors or officers).

Receiving a number of questions quite literally as the meeting commences, with no time to prepare an appropriate response, will almost certainly result in incomplete and inaccurate responses which could only be avoided by taking most questions on notice, which will frustrate community members seeking an immediate ‘on-the-spot’ response.

The Public Question Time segment guidelines clearly indicate that questions are without notice and responses are general in nature.

To overcome the concerns raised in relation to the segment, it is proposed that public questions be lodged at least 15 minutes prior to the Council meeting. It is also proposed that the Public Question Time segment occur later in the meeting at a suitable opportunity after the first two or three business items have been considered.

This approach will allow improvements in the process, including:

• Assessing whether the question is in accordance with the guidelines, such as no longer than 50 words, is within Council’s powers, is relevant, is not defamatory, etc.;

• Provides officers with some time to consider the question and provide an enhanced response;and

• Provides the questioner with a more thorough response;

If the question requires research then it will be taken on notice and a written response provided to the questioner (as is currently the case).


OFFICER DIRECT OR INDIRECT INTEREST

No person involved in the preparation of this report has a direct or indirect interest requiring
disclosure.


CONCLUSION

The audio recording and subsequent distribution of the proceedings of Council meetings is a matter for Council to determine. It is reiterated however, that the recording of meetings does not constitute an official record of decisions of the meeting. The official record of a Council meeting is the resolutions of the Council, with the minutes confirmed at the next available meeting of the Council.

Apart from the requests by two or three regular attendees at Council meetings, there seems little to be gained by the audio recording and subsequent distribution to the public of the proceedings of Council meetings. Councillors will need to consider the issue of their comments being taken out of context and the increased possibility of either a member of the community or a Councillor pursuing an action against the Council, Councillor or an officer.

Council should also consider the inclusion of Clauses in the Local Law which prohibits the unauthorised recordings of Council and Committee meetings and Assemblies of Councillors.

With regard to the Public Question Time segment, regardless of Council’s decision in relation to the audio recording of Council meetings, the suggested changes will see improved responses on the issues
raised.


RECOMMENDATION

1. That Council determines on the audio recording of Council Meetings and associated
distribution.

2. That Council amends the Public Question Time segment to require questions to be
lodged 15 minutes before the commencement of the meeting, and the segment to be
held at an appropriate time during the meeting to allow additional time to consider
responses to the questions.

3. That the review of the Local Laws currently in progress considers Clauses relating to unauthorised recording of Council Meetings, Committee meetings and
Assemblies of Councillors.