By Raquel Mustillo
GRANT District Council has lost a 19-month battle to keep an audio recording of a controversial council meeting secret after the state’s ombudsman rejected an argument that the release of the document could cause difficulties within the organisation.
South Australian Ombudsman Wayne Lines has ordered council to hand over a recording of a special council meeting held in February 2019 to discuss “code of conduct” matters and a cultural review of the organisation.
Council has fought the release of the two-hour recording – which was held in public and not in confidence – initially requested in April 2019 by The Border Watch under Freedom of Information (FOI) laws.
According to a council submission to the state’s ombudsman, the recording involves a number of council staff members discussing working conditions and concerns about the work environment.
“Amongst other things it also includes discussion about the conduct of elected members,” the submission said. “Those matters, if made public, would cause difficulties for and amongst council staff.
“Staff understandably held the view that their comments and opinions were projects and would remain within the council chamber and not be the subject of potential news headlines outside this council meeting.”
Mr Lines did not consider the argument to be persuasive, adding he found it “difficult to consider that the matter discussed at such a meeting could properly be characterised of being of private concern to the individuals involved.”
The special meeting was called by three councillors amid ongoing concerns linked to behavioural breaches and the relationship between mayor Richard Sage and then chief executive officer David Singe.
Minutes show Mr Sage and Mr Singe in attendance, alongside Councillors Kylie Boston, Gill Clayfield, Megan Dukalskis, Jody Elliot, Barry Kuhl, Shirley Little and Brad Mann.
Environmental services director Leith McEvoy, airport manager Ian Fritsch, community development coordinator Jayne Miller and executive assistant Judy O’Hehir also attended the meeting.
Councillors Julie Reis and Bruce Bain and then deputy chief executive officer Jane Fetherstonhaugh were absent.
According to the minutes, Grant District mayor Richard Sage declared an actual conflict of interest in relation to the Code of Conduct item and advised he would not chair the meeting.
On June 21, 2019, council declined the FOI request for a copy of the entire recording, saying it had sought and followed legal advice on the matter and determined to refuse access to the documents.
Council said Section 20(1)(a) of the FOI Act provides an agency “may refuse” access to a document on a number of grounds.
The Border Watch sought an external review with the South Australian Ombudsman, reiterating the meeting was open to the public.
In response, council said there was a “strong public interest in elected members and staff being able to have frank and open discussions regarding council’s performance, duties, functions and current issues”.
“…the outcome of disclosing the recording would likely inhibit the frankness and openness of discussions by council personnel and in council meetings going forward,” council said.
Council said these matters included council’s role and function regarding industrial relations and personnel-related issues.
While acknowledging there was also a public interest in transparency and accountability on the part of council, Grant said that that need was already met by the public provision of agendas and minutes of meeting.
The Border Watch lodged a second external review with the South Australian Ombudsman office due to it being an open meeting and members of the public could attend for the duration.
In a submission to the Ombudsman, then acting chief executive officer Jane Fetherstonhaugh characterised the discussions as the meeting as sensitive.
“Whilst we acknowledge that it was a public meeting, when no members of the public attended the meeting, the nature of the discussions changed and a more open forum was subsequently held,” she said.
In a seven page review handed down last month, Mr Lines said given council’s concession the meeting was open to the public, the rest of the submission was “unpersuasive”.
Mr Lines said council had not voted to enter confidence “and even such an order were made, I do not consider it would be appropriate for it to apply to the entirety of the meeting”.
He said while the onus was on council to justify its reasons for refusing to access, he did not consider the onus had been met.
“The agency has relied upon numerous clauses in claiming that the document is exempt,” Mr Lines said.
“Based on the submissions before me, I consider there is little evidence that the agency has made a genuine effort to link the exemptions claimed to the actual content of the document.
Ms Fetherstonhaugh also submitted consultation with third parties would be required if any part of the recording was to be released, adding it would be “extremely difficult and onerous particularly considering the fact that one of the parties with which consolation would be required was recently terminated from council and a very fractured relationship remains”.
Mr Lines noted because council considered consultation was not reasonably practicable and it was not feasible for the document to be released it part, it was his view the document should be disclosed in full.
Following Mr Lines’ provisional determination, council reiterated that it stood by its initial submissions, but conceded that it did not sufficiently meet its onus and therefore had no further submissions to make.
Chief executive Darryl Whicker said council will not appeal the decision.