Section 10. Confidentiality

Introduction

Guidance for Boards on dealing with confidential information, in accordance with Local Government Information and Meetings Act 1987 (LGOIMA) and the Official Information Act 1982 (OIA).

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10.1 Overview

In the course of their work Boards will generate or receive information that may be (at least for the time being) confidential. For example, information regarding a concession application that contains information of a commercially sensitive nature may be put before the Board.

Conservation Boards are subject to the Official Information Act 1982 (OIA) by being listed in Schedule 1 of the Act, so all information a Board holds is classed as official information. This means the principle applies that the information should be made available to the public, unless there is a good reason to withhold it (s5).

However, the OIA also acknowledges that there is a need to protect official information when it is in the public interest to do so, as well as preserving personal privacy. The Board may need to consider whether information provided in confidence may cause harm if inappropriately disclosed. More information about confidentiality considerations can be found on the website of the Ombudsman.

10.2 Application of LGOIMA and the OIA to Board information

Conservation Boards are also listed in Schedule 2 of the Local Government Information and Meetings Act 1987 (LGOIMA) so are also subject to (only) Part 7 of that Act. Part 7 of LGOIMA relates to meetings and (among other things) gives a Conservation Board the right to exclude the public from all or part of their meetings by using certain provisions of the OIA, if information will be generated or received at the meeting which the Board considers confidential. See section 8 of this Manual for more information on the meetings provisions of LGOIMA.

Section 48 of LGOIMA lists a number of factors that a Board can consider when determining whether it is necessary to exclude the public from the whole or any part of its meeting. In particular, s48(1)(a)(ii) of LGOIMA references provisions of the OIA that can be considered by a Board. Among these are protection of privacy, confidentiality and legal privilege. It includes information that is commercially sensitive and in some cases includes advice shared with the Board by the Minister or DOC.

10.3 Assessing whether information should be treated as confidential

Most information that Boards deal with will not cause harm if it is disclosed to the public, but when information is received, DOC support staff and the Board should assess whether it needs to be protected and restricted to only Board members. For example, the originator may request confidentiality, or the information may be commercially sensitive or legally privileged. This requires a careful assessment of the relevant provisions in the OIA, with the starting point that information must be made available to the public unless there is a good reason to withhold it.

The Board may wish to consult with the originator as a precaution if they consider information supplied to them may be sensitive. The Board can choose to exclude the public from the part of the meeting relevant to the matter or restrict circulation of materials to only Board members if the grounds under s48 of LGOIMA are met. If the Board does not intend to protect the information or treat it as confidential, then the originator (including the Minister or DOC) should be given the option of withdrawing the information.

10.4 Information shared between Boards, and the Minister and DOC

The Minister may be required to consult with a Board under the Conservation Act, to gain better information about a matter to base discussions or decisions on (for example when dealing with applications under s24BA of the Conservation Act). DOC may also consult with a Board on conservation matters within the Board’s rohe, including concession applications.

This type of information sharing allows Boards to have more informed discussions about matters in their rohe and in turn, informs their advice provided to the Minister or DOC.

This type of information can sometimes be withheld from the public under the OIA, as it may present a harm to maintaining the constitutional conventions which (for the time being) protect the confidentiality of advice tendered by the Minister or DOC. The Minister can reasonably expect that advice sought will remain confidential during the time it takes to:

  • consider the proposal
  • take account of the Conservation Board’s view
  • make a decision; and
  • advise the applicant and others of that decision.

Section (s9(2)(f)(iv)) of the OIA can be used (a provision to protect the confidentiality of advice tendered by Ministers of the Crown and officials) when matters are under active consideration by the Minister or DOC and are not ready for releasing to the public. It will still be necessary to consider whether it may be in the greater public interest to make the information available. This can be a finely balanced exercise, so the Board may wish to seek DOC’s input before deciding whether to release or withhold information under the OIA.

10.5 Non-disclosure of information deemed confidential

When information is (or will be) presented to a meeting and the public is (or will be) excluded for that item under OIA grounds, Board members must not disclose that information to anyone other than a fellow member and DOC servicing staff, unless authorised by the Chair.  This obligation also endures beyond a Board member's term.

The Chair will advise (in writing) if information previously deemed confidential is no longer confidential. Until that time, the information must continue to be treated as confidential. See section 8.14.6 for more information on the review of a confidential/public excluded item.

10.6 Confidentiality during virtual meeting attendance  

A member who virtually attends a meeting (using video or teleconferencing facilities) must be able to ensure the meeting’s proceedings are confidential during any time the public is excluded from the meeting.  This includes pausing the recording of the meeting if it is being recorded.

The member should confirm to the Board before public excluded discussions begin, that no unauthorised people are able to view or hear the proceedings.

10.7 Discussing Board business outside a meeting

Board members must not disclose information deemed confidential with anyone outside of the Board, or use the information for their own purposes. This relates to all information that, if requested from the Board, would be able to be withheld under the OIA.

More inforrmation on members' individual conduct regarding data security and confidentiality is set out in section 11 of the Code of Conduct for Conservation Board Members.

10.8 Confidential information remains property of the Board

Any confidential Board papers remain the property of the Board and any copies must be securely destroyed or returned to the Chair or DOC servicing staff at the end of a member’s term. This includes deleting electronic copies of any information.

10.9 Confidentiality in informal meetings

A Board’s regular formal meetings are governed by LGOIMA Part 7. Section 48 of LGOIMA gives a Board the ability to exclude the public from all or part of those meetings, however notably, Boards cannot use s9(2)(g)(i) of the OIA (the ‘free & frank provision’) to exclude the public when the meetings provisions of the LGOIMA are in operation for their formal meetings.

Informal meetings (meetings at which no resolutions or decisions are made as per s45(2) of LGOIMA) do not operate under the LGOIMA meetings provisions, so they do allow for free and frank discussion among members.  As noted in section 8.18 of this Manual however, information dealt with in informal meetings is still subject to the OIA and can be specifically requested or fall within the scope of a wider request for information. This is due to the fact Boards are still separately subject to the OIA, even if they are not operating a meeting under LGOIMA.

This means that, if a Board wishes for the information to be dealt with in confidence, an assessment still needs to be made under the OIA, to determine which (if any) grounds may be available to withhold the information from the public, factoring in the weight of the public interest in having that information made available.

Any information or presentation dealt with at an informal meeting that is confidential in nature should be clearly identified as such, for example with a ‘confidential’ watermark and statement on cover pages such as: “This document is designated confidential. Recipients must not release this Information without prior approval of the chairperson and in accordance with the Official Information Act”.

There should be meeting notes created for informal meetings of the Board. In the notes there should be a record of acknowledgement between all participants of the meeting that the information is withheld from the public (and under what provision of the OIA this is justified) and that participants agree to treat the information in confidence.

Case study: Failure to agree on confidentiality in an informal meeting

A Board hosted an informal meeting which involved visitors giving a presentation on a matter of interest to the Board. The meeting was intended to update the Board on matters at a draft/policy development stage and not ready for communicating to the public. The visitors attended with an expectation that the information discussed would be dealt with in confidence. However, this was not specifically or formally addressed between the Board and the visitors. A Board member subsequently shared information from the informal meeting into the public domain, with an adverse result involving the media.

To avoid a situation like this in future, the following steps should be carried out:

  • The visitors contact the Board Chair (via the Operations Director or Board Support Officer (BSO)) in advance with a request for the informal meeting to take place in confidence. The visitors may suggest grounds under the OIA or provide reasons for the Board to consider, to support their request.
  • The Chair carries out a pre-assessment (based on Ombudsman guidelines) to give the visitors an indication of whether the Board would be likely to agree to confidentiality. The Chair explains to the visitors that the Board still needs to agree to confidentiality at the meeting.
  • At the beginning of the meeting the Board assesses grounds that may be available to withhold the information, factoring in the weight of the public’s interest in having access to the information. If no grounds are found, the Board can decline the visitors’ request for confidentiality.
  • The visitors may then exercise their option to decline to proceed with the meeting and/or share any materials/redact portions of the materials.
  • If confidentiality is agreed to, the BSO creates a meeting note that records the names of the attendees, outlines the topic/s discussed in the informal meeting, and records the agreement between all meeting attendees to treat the information and materials as confidential (stating the relevant provision of the OIA).

The effect of the above steps is that the Board clearly understands that confidentiality stays in effect until the Board Chair advises the information is no longer able to be withheld under the OIA. Board members are bound by obligations of confidentiality until then.

10.10 Requests for information under the Official Information Act (OIA)

Boards are listed in Schedule 1 as organisations that the OIA applies to. If any information is held by a Board, it can be requested under the OIA.

The OIA covers all information held by a Board, including records of communication between members. Board members should be aware information can be requested from their personal devices if it was generated, communicated, received or otherwise held in their capacity as board members.  See s2(4) OIA.

A request from a member of the public may not specifically refer to the OIA, but may be an OIA request regardless, if it relates to information held by the Board. If a Board is unsure whether a request is actually an OIA request, it should clarify with the enquirer and ask them to submit an OIA request in writing if possible (s12(4))).

10.10.1 Administering OIA requests

DOC services Boards under s 6V of the Conservation Act, and this includes managing and maintaining the Board’s records. Therefore, if an OIA request is received for information held by a Board, DOC will administer the request in the Board’s name, following the Board’s decision around whether to make information available or withhold it. There are statutory timeframes involved and DOC staff will assist with meeting these obligations. The time limit can be extended if needed, but any extension of time must be for a reasonable period.

Boards need to be mindful that the principle of availability is the starting position for any consideration (s 5) . This means that, even though a Board may wish to withhold the requested information and find apparent grounds to do so, there must be very strong justification for withholding it, especially where it could be argued that it is in the public interest to release the information. This can be a finely balanced exercise, so a Board may wish to seek DOC’s and possibly the originator’s input before deciding whether to release or withhold information.

The Board is accountable for any decision it makes to withhold or release information. Anyone who has an application for official information refused can appeal to the Ombudsman to investigate a Board’s decision to withhold information.

 

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