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Tuesday, November 09, 2010

The case of the council manager's performance review-and sundry others.

A number of recent decisions on Freedom of Information issues of direct relevance to local councils, and perhaps of interest to a wider audience are noted in this post.  The NSW  Administrative Decisions Tribunal decisions concern the Freedom of Information Act, repealed and replaced by the Government Information (Public Access) Act from 1 July, but the "tail" of matters before the Tribunal is continuing.

The NSW decisions concern documents relating to the performance review of a council general manager, disclosure of documents relating to the engagement of recruitment consultants, disclosure of details of council staff education and qualifications, and credit card expenditure by councillors and staff. In Western Australia, the Information Commissioner considered issues concerning disclosure of a transcript of tape recording of a council meeting despite a councillor's submission that it contained personal information, and shouldn't be released, and the status of an elected person as "an officer" of the council. Decisions should be read against the particular facts, and bearing in mind access laws differ in the various jurisdictions.


Documents relevant to General Manager's performance
 In Diehm v Greater Taree City Council [2010] NSWADT 233 two of the documents in dispute concerned the annual performance assessment of the General Manager.The applicant indicated that he was not seeking the General Manager’s personal objectives but the performance objectives and KPIs, together with details of the system of measurement for the next performance review.

Judicial Member Molony found the Performance Plan outlining the leadership approach, values and behaviours to be adopted by the General Manager and including other general details of performance review was not exempt as an internal working document or a document concerning council operations. Both these FOI exemptions contain a public interest test.

Judicial Member Molony said:
"..(T)here is a substantial public interest in this type of generic information relating to the role of General Manager being released. It gives an understanding of the values and attributes which Council expects from its most senior officer, and outlines how Council expects them to be demonstrated. Releasing that information would enhance the accountability of both the Council and the General Manager, enable a greater understanding of the values they bring to the performance of their roles, and enhance transparency. I consider that the public interest, on balance, requires disclosure of the Performance Plan"[24].

25. I do not accept release of the Performance Plan would have a substantial adverse affect (on) the management or assessment of the General Manager, or on the Council’s performance of its functions. I do not see and Council has not explained how disclosure of the leadership approach and values expected of its General Manager would have such a substantial adverse impact.

However parts of the other document, the Action Plan, that included details of deliverables, due dates, completion details and allocation of responsibility for particular tasks to the General Manager and other senior officers were exempt:

26. The Action Plan outlines a series of action areas which the General Manager and others are to address, outlining for each area the strategic action(s) to be taken, whose responsibility that actions is, and the deliverables for that action. It includes a progressive commentary with respect to each strategic action, with target dates, adjusted target dates and completion details. It therefore includes broad areas of action, with sub-sets of specific actions, including deliverables, due dates, completion details and allocation of responsibility for necessary actions. The General Manager is not always the sole officer responsible. Some of the due dates are yet to pass.

27. By its nature the Action Plan is liable to change, with action dates being adjusted, and completion status changes. I agree with the Council that it contains some information in relation to ongoing developments and business strategies of Council, the release of which is likely to have a substantial adverse affect on Council’s performance of its functions. Because of the danger which premature release of that information could have, in terms of processes and strategies being compromised or taken advantage of, I accept that, in those cases, this would be contrary to the public interest.

28. At the same time, the Action Plan contains a number of entries which do not disclose such matter and that are essentially unexceptional in nature. There are many matters which one would expect to find in any such plan: they are predicable and unexceptional. I do not accept that release of that information would have a substantial adverse impact on either the Council’s performance of its functions or on its management or assessment of the General Manager.

29. For substantially the same reasons, I accept that release of some of the Action Plan would disclose advice or recommendations that have been obtained, prepared or recorded, in the course of, or for the purpose of, the decision-making functions of Council. These relate to both external decision making and decisions with respect to internal Council processes. I accept that premature disclosure of those matters would be contrary to the public interest.
(Comment: A related development of interest is the decision by one NSW council to publish online (Mayoral Minute 17 August 2010) without redactions, the report to council on the manager's performance review undertaken by a committee of councillors. I understand it did the same thing the year before.The content mainly concerns the satisfactory achievement of high level goals and details of a salary increase. HR professionals would point out that the purpose of a proper performance review is assessment of goals and achievements, capabilities and areas for improvement, best achieved through a frank  discussion of these issues with the supervisor. While there can be no absolute guarantee of confidentiality, that might be the expectation regarding some of what transpires in the course of discussion, including references to an individual's personal attributes including health and related circumstances. For senior staff some matters canvassed may concern commercial or otherwise sensitive issues about the organisation. When it comes to dealing with an access application for documents concerning performance review, much depends on content and context. The NSW GIPA act relevantly includes public interest considerations against disclosure of personal information, or information that if disclosed would prejudice the conduct of any "review", or the effective exercise of agency functions. Those considerations, if they were in play at the time a request was being considered, would need to be weighed against  public interest factors relevant to disclosure.)

Documents concerning engagement of consultants to assist with recruitment of General Manager.
In the same case Judicial Member Molony rejected the Council's submission that these documents were exempt on business affairs grounds:
55. There is no commercial in confidence provision in the documents which would be breached by disclosure of the information contained in the documents. Similarly, there is no evidence of there being any applicable commercial in confidence provision which prevents disclosure of these documents. As a result Clause 7(1)(ai) does not apply.

56. There is no evidence that the documents contain information of commercial value to the Council, the Consultants or any one else. While Council submits that the tender document "would naturally contain confidential information in the form of business methodologies and strategies that forms part of the Consultant's intellectual property," there is no evidence that this is the case, and this is not apparent from a reading of the document. The tender is unexceptional. It sets out the services to be delivered if the tender is accepted, and provides details of the persons who will provide those services. As a result Clause 7(1)(c) does not apply.

57. I accept that the documents evidence a commercial arrangement between Council and the Consultants: they relate to the business and financial affairs of both the Consultants and Council. The financial details of that arrangement are already in the public domain, by virtue of the release of the redacted invoice under the Freedom of Information Act 1989 to Mr Diehm. The documents relate to a tender accepted and performed in February 2007, more than three years ago. They concern the recruitment of a senior employee by Council, a relatively common event. In those circumstances I have grave difficulty in understanding, and Council’s submissions do not address, how disclosure could be reasonably expected to have an unreasonable adverse effect on those affairs, or prejudice the future supply of such information to Council. I do not accept that such effects could be reasonably expected to flow from disclosure.

In a separate ADT decision involving the same parties:
Credit card statements
The Council agreed to provide access to credit card statements and conference expenditure for the 2008-2009 financial year for current and previous serving Councillors, General Managers and Directors.[12-13] 

Education and professional qualifications of staff not exempt
Judicial Member Molony found that certificates relating to academic qualifications held by the General Manager were not exempt [40],but enrolment and HECS liability documents containing details of the dates of the General Manager’s enrolment, the subjects he was enrolled in, how those subjects were paid for and any resultant HECS liability were:
"These are, in my view, private matters concerning the course of the General Manager’s education and how he paid for it. They plainly relate to his personal affairs. I agree with Council that their disclosure would be unreasonable." [39]

Documents detailing the professional qualifications and memberships of the Council's Finance Manager were not exempt:
"They are her professional qualifications and affiliations and speak to her professional competence, including competence for the role she is now in." [46].
Western Australia

In Aniveb and the City of Canning [2010] WAICmr 28, a case in which a councillor as third party objected to disclosure of some information of what was said at an open council meeting, the Western Australian Information Commissioner, ruled on:

Record of discussion at a Council meeting 
The tape recording and the transcript made from it were both ‘documents’ as defined in the FOI Act. [7]

Names of officers of an agency 
  1. In relation to officers of government agencies, the FOI Act makes a distinction between purely private personal information – such as an officer’s home address or health details – and certain information that relates to the performance of their functions as an officer of the agency. In my view, clause 3(3) is a recognition by Parliament that the exemption in clause 3(1) is not intended to provide anonymity for public sector officers each time one of them is mentioned in a document. Such a result would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability: see Re Veale and Town of Bassendean [1994] WAICmr 4 at paragraph 35. 
A councillor is an officer of an agency
An elected person will be an "officer of an agency’"if he or she is a "member of the agency" or otherwise comes within the definition in the Glossary to the Act. The Commissioner set out reasons [33-37] for finding that a councillor was an officer, which meant that prescribed information-name and information about the performance of functions- was not personal information, and not exempt from disclosure. The question of public interest in disclosure therefore did not arise. The Commissioner said however that if that was in issue:
 "I would be inclined to the view that the public interest in the agency maintaining a fully transparent and accountable process for discussions held in open Council meetings would carry considerable weight in favour of disclosure."[40]

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