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IPC v CVC … IPC wins

Geoff Helisma

Clarence valley Council’s (CVC) wrestle with the NSW Information and Privacy Commission (IPC) was resolved at the October 27 CVC meeting.

At the November 2019 CVC meeting, councillors Lysaught, Ellem, Kingsley, Baker, Williamson and Simmons voted against uploading their and designated staff’s declarations of interest to CVC’s website, contrary to the NSW Information and Privacy Commission’s advice.

During questions at the November meeting, general manager Ashley Lindsay, who is a designated staff member, told councillors: “On behalf of staff and designated staff and persons, I think it is unfair for them to have their information on the website for people to view.”

On that occasion, however, councillors and Mr Lindsay were supportive of a resolution taken at the Local Government NSW conference, which “strongly objects to the [disclosures] … being published on any website … and urges relevant authorities, including but not limited to, the Office of Local Government/IPC and ministers to reverse the Information Privacy Commissioner’s requirement”.

A rescission motion to reverse the November decision, lodged by Cr Karen Toms and co-signed by councillors Novak and Clancy, failed to gain traction at the December CVC meeting, with only the mayor, Jim Simmons, changing his vote.

At the October 2020 CVC meeting, councillors addressed the IPC’s 15 recommendations and councillors unanimously voted “that the Information and Privacy Commissioner’s audit report, responses provided and progress against recommendations, be noted”.

Meanwhile, statements, answers and conversations that took place at the Corporate, Governance & Works Committee on meeting October 20 and then at the following week’s full council meeting reveal some of the councillors’ feelings about the matter.

CORPORATE, GOVERNANCE & WORKS COMMITTEE MEETING

During questions at the committee meeting, Cr Deborah Novak asked: “How did we end up in this mess?”

Ashley Lindsay: I wouldn’t call it a mess. I guess someone’s reported us to Privacy Commissioner and we’ve been working with them to improve the access of public information, as the report says. I wouldn’t call it a mess.

There was no real debate following questions, however, several councillors chose to comment in place of debate.

Committee chair Cr Karen Toms (KT): The first thing I want to do is thank councillors who, one, voted not to comply and, two, didn’t support my rescission motion. At the time I was pretty cross [because I] have pretty strong feelings about compliance with legislation…

But the very fact is we didn’t [comply] and certain things were said and reported in the media like, ‘What can they do to us?’ Well now we know what they can do to us: they’ve done an audit that took seven months … which came up with 15 recommendations.

And I might add that 14 of them have already been done, so a big tick for that.

…But I’m not being facetious; I’m genuinely thanking you, because without that the audit [the improvements] would never have happened…

…It’s very important that we, as leaders in our community, comply with legislation that creates openness and transparency. One of the many reasons is to, hopefully, prevent corruption.

So I do thank you all very much, but … it is embarrassing that we have that culture of non-compliance. I can only hope that we’ve learnt a lesson…

We are here to serve our community and we shouldn’t try and keep things from them. We shouldn’t have any reason to keep things from them; there’s even legislation to ensure that we don’t. So I ’m happy with this outcome even though I was angry at the time.

Mayor Jim Simmons (JS): I’m not sure what to say. My memory tests me a little bit when we go back to this issue of complying with disclosures and whatever. But for my part, I would like to say that as far as I am aware I have always completed declarations…

KT: Sorry, but this motion is not about individuals and whether we’ve done the right thing or whatever; so I need to bring you back on track to what the motion’s about.

JS: When you were talking Madam Chair, even though it wasn’t directed at anyone, you were in general terms referring to obligations to declare…

KT: It’s not a dig at an individual, it was that we weren’t complying with putting our and designated persons’ declarations on the website, as we were supposed to do under the GIPA Act.

Cr Peter Ellem: I just want to say that I don’t like being lectured by you (Cr Toms) about declarations or transparency. You know, no matter how you put it, it was insulting to the councillors who at the time were making decisions based on advice provided by staff [who were rated as designated persons] and they were only guidelines [note: general manager Ashley Lindsay advised councillors that it was legislation at the December CVC meeting] at the time, being brought in; so dress it up however you like, but you did refer to councillors who voted against it…

The public servants flexed their muscles, the council has responded. It’s meeting all but one of the recommendations and, like the mayor, all of us take this very seriously … we have to fill them [declarations] out with monotonous regularity…

Cr Arthur Lysaught: I really don’t have much more to add, other than what Peter has just said. At that time I was one who voted against your [rescission motion] and, like Jim, some things get away from me. But at the time we were advised, or shortly after, by our general manager that we weren’t fully compliant with the legislation.
…On this particular occasion there was a concern by me and others that we were revealing too much to the faceless keyboard warriors, who take every opportunity to have a crack at people who fill community roles.

From my memory that was the main reason we voted against your rescission motion … but we were fully guided by our general manager, who indicated to us that we were wrong; we turned around and corrected it. Now there’s only one thing to be rectified, so I think we should be complementing our general manager.

OCTOBER 27 CVC MEETING
Cr Greg Clancy (GC): …I want to put on record I that I’m quite disappointed with the whole process that has occurred here; I think it was avoidable and there was some very poor advice given and some very poor decisions made.

Without going into any detail, I want to say that I think we need to, as a council, make sure that we don’t fall into these traps again, where we end up spending many months sorting out an issue which could have been sorted out immediately and should have been sorted out immediately.

Cr Arthur Lysaught: While Cr Clancy may be of that opinion, it was, again, one of those circumstances where councillors voted in a particular manner. We are a democracy, we were proven to be wrong, some of us; but at the time we acted, well I certainly did, in what I thought was good faith. I’ll admit when I do wrong, I’ll put my hand up and say I was one of those who voted against Cr Toms’ motion at that particular point in time – but I don’t step backwards on that point.

That’s a pretty broad statement made by Cr Clancy… I just couldn’t let the opportunity go by without passing a comment myself…

Cr Richie Williamson: I find it quite bizarre that I’ve gone searching for the IPC commissioner’s declaration on her website and I can’t find it on her website. But never mind, ours are there.

GC: I deliberately didn’t want to go into detail because I don’t think it’s necessary and I thank Cr Lysaught for supporting my view.

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