Tribunal reprimands and suspends South Australian council member for disclosure of confidential information

The South Australian Civil and Administrative Tribunal (the Tribunal) has, in its recent decision of City of Victor Harbor v Charles [2020] SACAT 71, reprimanded a Council member and suspended him from office for two months on the basis of a breach of the Code of Conduct for Council Members (the Code).

Facts

Cr Charles of the City of Victor Harbor (the Council) disclosed details of a confidential briefing provided to the Council, to persons external to the Council. Cr Charles did so by copying the Victor Harbor Community Action Group into an email which Cr Charles sent to the chief executive officer of the Council.

The Ombudsman (on referral from the Independent Commissioner Against Corruption) investigated the matter and issued his final report on 10 December 2019. Though Cr Charles contended to the Ombudsman that the information in his email was merely ‘general’ in nature and not confidential, the Ombudsman concluded that disclosing both the fact of the briefing and purported statements made during the briefing constituted a breach of clause 3.3 of the Code. That clause provides as follows:

Council members must not release or divulge information that the Council has ordered be kept confidential, or that the Council member should reasonably know is information that is confidential, including information that is considered by Council in confidence.

The Ombudsman recommended that the Council lodge a complaint against Cr Charles in the Tribunal. The Ombudsman made this rather serious recommendation because Cr Charles had already been found by the Ombudsman to have breached the Code on a number of prior occasions.

On 22 April 2020, the Council accordingly lodged a complaint and interlocutory application in the Tribunal seeking an order that Cr Charles be reprimanded, and an order that he be suspended from office as a member of the Council for a period of two months.

Decision

Upon the hearing of the matter in the Tribunal, Cr Charles admitted to the allegations made against him and did not seek a lesser sanction than those sought by the Council. The Tribunal accordingly held that Cr Charles had breached clause 3.3 of the Code and agreed that the sanctions sought against Cr Charles were appropriate. This was so regardless of the fact that Cr Charles’ disclosure of the confidential information was “… motivated by a desire to provide information that would enable informed debate in the community about contentious issues”.

Cr Charles was accordingly reprimanded and suspended from office for two months by the Tribunal.

Take home message

The Tribunal concluded its decision with the following observation:

It is essential that Councils have the ability to obtain confidential advice about appropriate means of dealing with members of the public, be they individuals or groups. It is appropriate for Councils to share such advice with members of the Council on a confidential basis. If confidential information is released by members, the Council’s ability to operate effectively is compromised. Members must abide by their duty of confidentiality in such circumstances.

This observation, though made in the context of a particular case, is clearly apt in the context of the day to day affairs all Councils, Council members, and Council staff. There are very clear rules about management of and access to Council records and information, including confidential records and information. All Council members and Council staff need to be aware of these rules and abide by them. Regardless of the motives any individual, it is the case that criminal and civil consequences can follow for Councils—and the individuals concerned—if these rules are not followed.

This case also serves as a timely reminder for Councils to ensure that Council members and staff are appropriately trained, both at the time of induction and on an ongoing basis, regarding confidentiality requirements and records management generally.

For more specific information about the matters discussed in this article, please contact Felice D’Agostino on +61 8 8210 1202 or fdagostino@normans.com.au, Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au, or Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au.