25 Aug 2013

Brian Rudman: Bureaucrats beaten at own game

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Written by: Brian Rudman
Photo by: Natalie Slade
Published: The New Zealand Herald – 25 August 2013

Dogged Auckland councillor jolts power structure back in favour of elected representatives' right to knowcomment Sandra Coney has scored a win for open government.

Dogged Auckland councillor jolts power structure back in favour of elected representatives’ right to knowcomment Sandra Coney has scored a win for open government.

Dogged Auckland councillor jolts power structure back in favour of elected representatives’ right to knowcomment Sandra Coney has scored a win for open government. Photo / Natalie Slade
Let’s hear it for Auckland councillor Sandra Coney. After a three-month slugfest with the bureaucrats, she has forced them to concede the politicians’ right to see background information and legal advice held by the bureaucracy.

The jockeying for power since the creation of the Super City three years ago has been a bit like the aftermath of an earthquake, with a series of aftershocks as new power structures lock into place.

Jostling away have been the mayor and his retinue, the chief executive and his army of bureaucrats, the local boards and the 20 elected councillors.

For these last, it’s been a struggle, not just for power but, in the eyes of some of the more experienced hands, for relevance as well.

Ms Coney’s parting legacy as she retires from regional politics – but not from local; she’s thrown her hat into the contest for the Waitakere Ranges Local Board – has been to jolt the power structure back a little in favour of the elected representatives.


In particular, her victory is a boost to the backbench councillors who risk being isolated, outside both the mayoral and bureaucratic fiefdoms.

At the beginning of June, and concerned about the haste involved in preparing the draft Unitary Plan, Ms Coney became aware that a team of senior outside Resource Management Act lawyers and advisers had been commissioned to review the document and ensure it was legally accurate and complied with all relevant legislation and statutory requirements.

As a councillor, responsible for making decisions about the document and eventually approving it, Ms Coney requested a copy of the expert review. She also wrote to chief executive Doug McKay saying, “It is astonishing that I should be expected to participate in workshops and meetings on the Unitary Plan, and make decisions about the UP, but I am denied access to information that the staff have.”

She said she was not a member of the public but “a member of the governing body” and “I consider it essential to my governance role that I am able to access what I believe I need to make good decisions. I believe that the people who elect me would expect I can access any information held by the council and accessible by staff.”

Three weeks later she was told, not by a bureaucrat but by Deputy Mayor Penny Hulse, that the bureaucrats wouldn’t hand it over. Chief planning officer Roger Blakeley then wrote refusing her access under the Local Government Official Information and Meetings Act, which she argued was not only irrelevant but ridiculous, as one of the clauses he used as justification was the need to protect “free and frank expressions of opinions by or between or to members or officers or employees”.

She noted she was “a member” and quoted back the Local Government Act, which demands that local authorities conduct their business “in an open, transparent and democratically accountable manner”.

Ms Coney then commissioned a legal opinion from local government expert Dr Grant Hewison, who advised that “councillors are entitled by virtue of their office to have access to all information held by the council for which there is good reason for such access. This principle is known as the ‘need to know test’.”

He said councillors should have access to information necessary to enable them to properly discharge their duties.

Ms Coney was entitled, as a member of the Auckland Plan committee, to assure herself, by viewing the documentation, “that the plan was legally correct”.

The bureaucrats immediately rushed off to their legal advisers, Simpson Grierson. Partner Bill Loutit’s view was that Dr Hewison was correct in stating councillors, in principle, had “need to know” rights, but not in this case. Much dancing on the head of a pin argument followed about the need for separating management and political functions.

Unbowed, Ms Coney forced the issue by placing the “need to know” principle on yesterday’s governing body meeting agenda.

Two days before, chief executive McKay backed down. While continuing to argue that councillors had no right, or any need, to know the contents of the report, he begrudgingly told the politicians he would make one “hard copy available for viewing on a read only and strictly confidential basis …”

Yesterday, councillors consolidated their victory by unanimously endorsing the “need to know” principle and forming a working party to investigate ways of including it in the council code of conduct.


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