Coun. Moore and Mayor Granstrom hash out the grey zone of council confidentiality

Andrew Bennett
By Andrew Bennett
November 29th, 2012

A special report on “Open Meetings” issued by the BC ombudsperson in September spurred Coun. Kathy Moore to raise a number of problems at Monday’s regular meeting with the way she feels council has historically handled in camera (closed) meetings.

“It’s really good, it’s worth reading,” Moore said about the report, Open Meetings: Best Practices Guide For Local Governments, that city staff also recommended as containing “excellent information.”

Ombudsperson Kim Carter writes, “One of the cornerstones of open and transparent government in British Columbia is the requirement for local governments to conduct meetings that are open and accessible to the public…I hope that the guide…will assist local governments in following both the letter and spirit of the open meeting laws.”

Moore said, “I would really like us to follow some of the best practices in that report.”

In particular, the ombudsperson summarizes her recommendations in a “checklist” that includes:

  • Was the meeting agenda posted in advance with sufficient detail to enable members of the public to determine the matters to be discussed?
  • Will minutes and other records be reviewed and released once confidentiality is no longer required?

Furthermore, the ombudsperson writes, that “best practice” for local governments is to “debate whether it is necessary to close a meeting to discuss a specific subject matter.” While some topics firmly require a closed door approach, many other legal provisions are conditional, creating what we’ve called a “grey zone” that council should debate (and vote on) case-by-case.

The grey zone

“One of the things I felt we have not done as a council,” Moore said, is that while it shows up on the agenda that we’re going into a closed meeting, we never actually discuss among ourselves whether we think it should go. It may be something that could go.”

“Just because something could go [in camera] doesn’t mean that it should,” she emphasized, highlighting the judgement call council must make. Moore said the “default” was for council discussions to be held in public.

Legally, all council business must be conducted in public unless specifically required by Section 90 of the BC Community Charter, “Meetings that may or must be closed to the public.”

Mayor Greg Granstrom responded, “I think the default is: if it is possible that it should be in camera, then it goes to in camera. If council, in camera, decides that it shouldn’t be in camera, a simple motion moves it out of in camera. We, as council, have the opportunity to bring it out immediately.”

“We do,” Moore agreed, “but we’ve never done that. I don’t know if anyone even thinks about it. We just take what’s put in front of us as in camera and just go with it. I think it would be really helpful for us to have a wee bit of a discussion before we just launch into it, to ask ‘Hey, is this really something that needs to be in a closed meeting?'”

Moore noted later that in her years on council she could only remember one time that a motion was raised and the necessity of confidentiality was debated. “Our culture has not been that we do that,” she said.

The ombudsperson’s perspective differs significantly from the mayor’s. Carter’s report clearly says that council should, as a matter of course, debate whether a grey zone issue needs to be in camera, rather than the reverse, which is to rely on a councillor to raise a motion objecting to the necessity of confidentiality.

Carter writes that Section 90 (1) (n) of the Charter—the legal provision for a closed meeting to discuss whether a topic should be dealt with privately or publicly—should be “the primary way that local governments debate whether it is necessary to close a meeting to discuss a specific subject matter…Once a decision has been made that a specific subject matter should appropriately be discussed in a closed meeting, councils and boards must return to an open meeting to pass a resolution to do so.”

Black and white spelled out

The ombudsperson unpacked the specific legal conditions in Section 90 that governments should use in these debates to separate light from dark in the grey zone.

Under subsections (e), (f), and (k)—land, law enforcement, and negotiations—she writes that these conditions only apply if the topic could “reasonably be expected to harm either the conduct of the investigation, the enforcement of an enactment or the interests of the municipality.”

She also recommends explicitly that local governments “first make an express determination (by resolution) that such discussion would be harmful, and then adopt a resolution to deal with the matter in the absence of the public.”

Subsection (g)—litigation—should only be used if there is a “specific threat” of litigation affecting the city, she writes, or because “advice from legal counsel” suggests the government’s interests in a potential litigation “may be prejudiced by public discussion.”

Subsection (j)—FIPPA, the Freedom of Information and Protection of Privacy Act—”does not apply if the affected third party has consented to the disclosure,” she writes.

Subsection (l)—municipal objectives—can only be used to authorize a closed meeting if discussion is limited to “preparing an annual report,” Carter writes. “The inference is that other meetings with municipal
officers and employees to discuss municipal objectives, measures and progress reports will be done openly.

Subsection (m)—other enactments—does not apply anywhere. Carter writes, “Currently there does not seem to be any enactment that would justify its use.”

A changing culture of confidentiality at City Hall?

The ombudsperson recommends that closed meetings be “rare,” and Moore said, “I’m very pleased that they are much rarer now than they used to be.”

Under new CAO Cecile Arnott, city staff have also moved forward on one of the ombudsperson’s best practices eschewed by former CAO Victor Kumar, namely that council post the in camera agenda “with sufficient detail to enable members of the public to determine the matters to be discussed.” Kumar only released the legal minimum of subsection numbers, but Arnott has released these in addition to a few words of description.

For example, the following was announced in Monday evening’s agenda:

“Remainder of the meeting of November 26, 2012 to be closed to the public pursuant to section 90(1)(d) security of the property of the municipality (e) land (g) litigation and (j) information prohibited from disclosure under section 21 of the Freedom of Information and Protection of Privacy Act.”

Moore said she appreciated this additional communication about the broad reasons for closing the meeting to the public.

Carter’s recommendation is arguably much deeper, however. She writes that the public should be provided with “clear and adequately detailed information about the matters to be discussed, rather than simply including a reference to the paragraph in section 90 that authorizes the closure of a meeting.” This approach “reflects the overarching objective of ensuring as much openness and accountability as possible.”

Elsewhere in the report she explains, “Local governments should provide as much detail as possible about the basis for closing the meeting without undermining the reason for closing the meeting in the first place. This will help to limit speculation, increase public trust and enhance the credibility of the local government.”

Opening the closet

Arnott also seems to be moving the city towards a systematic approach to releasing documents once confidentiality is no longer required—another key tenet of Carter’s best practices.

“There’s been plenty of stuff that’s gone on in camera, then the time has passed and it’s no longer [confidential], but we don’t seem to regularly bring it out,” Moore commented on Monday.

“That’s pretty much what we’re doing later on this evening,” Granstrom said, referring to the upcoming closed meeting.

“I know, and I’m really pleased to see that,” Moore said. “As long as that becomes the norm and not the exception.”

Carter recommends that cities “release as much information as possible…once confidentiality is no longer required.” Specifically, she writes that cities should “establish a process and assign responsibility to specific staff to review and release minutes of closed meetings and related information no longer requiring confidentiality.”

She clarifies that if only some information is appropriate to release, “it may be preferable to release incomplete information rather than to wait…Local governments should strive to release as much information as possible as often as possible, in order to demonstrate their commitment to the principles of transparency and accountability and to receive the benefit of a more informed, engaged and trusting public.”

Information the city has recently released, however, does not contain the “detailed minutes” that the ombudsperson said were of paramount importance.

Minutes of closed meetings should have “at least as much detail as open meetings,” she writes, and “include a detailed description of the discussion, any specific documents considered, any motions, resolutions or votes, and any directions issued.”

For the time being, whether for open or closed meetings, minutes for Rossland council meetings give little more than the wording of the resolution, and they never give an indication—let alone a “detailed description” of the discussion.

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