Confidential council information

LG Leader August 2020

The Local Government Act 1999 (‘the Act’) sets out more than one basis upon which members will be required to consider whether council information or documents are to be treated confidentially.

Confidential council information can be information protected by an order of the council (or a committee) under sections 90(2) and 91(7) of the Act, in addition to information that a member should reasonably know is confidential council information.

This position is specifically recognised under Part 3 of the Code of Conduct for Council Members, which provides that members must:

3.3       Not release or divulge information that the Council has ordered be confidential, or that the Council member should reasonably know is information that is confidential, including information that is considered by Council in confidence; (our emphasis)

The Ombudsman has recently confirmed that the disclosure of information received at a confidential council briefing (an informal gathering or discussion for the purposes of the Act) is a breach of clause 3.3 of the Code.

In that matter, the Ombudsman investigated whether a member disclosed confidential council information by sending an email about an informal council briefing to a Community Action Group. The purpose of the briefing was to provide members with information about a potential litigation against the council.

The Ombudsman’s view was that the member knew, or ought to have known, that the information discussed at the briefing was confidential and that in disclosing the fact of the briefing, as well as statements made, the member not only contravened clause 3.3 of the Code, but also committed misconduct for the purposes of section 5(3) of the Independent Commissioner Against Corruption Act 2012 (‘the ICAC Act’).

These circumstances are not limited to briefings, and will equally apply where a member receives information or correspondence by way of a confidential report or email, containing information which the member ought reasonably know is confidential.

Our advice has been, and remains, if in doubt, ask! Otherwise a member risks being in breach not only of Part 3.3 of the Code, but also the ICAC Act.

For further information please contact Tracy Riddle on triddle@kelledyjones.com.au or 08 8113 7106.