Howick by-election candidate Penny Bright makes historic first complaint to Chief Archivist about Auckland Council’s alleged failure to maintain full and accurate ‘contracting’ records.

23 May 2011

Howick by-election candidate Penny Bright makes historic first complaint to Chief Archivist about Auckland Council’s alleged failure to maintain full and accurate ‘contracting’ records.

“Today, Monday 23 May 2011,  I arrived at the Office of the National Archives with evidence which, in my considered opinion, proves that ‘contracting’ at Auckland Council is effectively  ‘out-of-control’,”  says Howick by-election candidate Penny Bright.

“I made a formal written complaint to the Chief Archivist, about an alleged breach, by Auckland Council, of
s 61 (c) of the Public Records Act 2005, because the Auckland Council

‘(c) contravenes or fails to comply with any provision of this Act or any regulations made under it.

(This alleged  failure to comply attaches to s 17 (1) of the Public Records Act 2005:

‘Every public office and local authority must create and maintain full and accurate records of its offices in accordance with normal prudent business practice, including the records of any matter which is contracted out to an independent contractor.’ ) “

“The evidence to support this complaint, included the following items of correspondence:

1) 10 March 2011: ‘Open Letter/ Local Government and Official Information Act (LGOIMA) request to the CEO of Auckland Council.

2) 26 April 2011: Reply from Bruce Thomas ‘Public Information Manager’ Auckland Council, including copies of transfers for information to the 7 Auckland Council CCO’s (and Council Organisation).

3) 16 May 2011: LGOIMA reply from the Regional Facilities Auckland CCO.

4) 11 March 2011” Acknowledgment by Ministerial Secretary Jess Van Harlem (Office of Minister of Local Government Rodney Hide) of my originating ‘Open Letter/LGOIMA request of 10 March 2011.
___________________________________________________

“I will be formally advising the Governing Body of the Auckland Council of this development, at their meeting tomorrow, Tuesday 24 May  2011  at the former Manukau Council Chamber  at 10am.

My proposed subject matter also includes:

1) Given that the Auckland Council will soon be finalising decisions on the proposed Auckland Council 4.9% rate increase, I wish to bring to your collective attention, some urgent matters regarding potential savings of residents and ratepayers monies.

2) Confirmation that Auckland Council ‘books’ are NOT open, and the spending on consultants and contractors appears to be ‘out of control’.

(So – how can the Auckland Council even consider ANY rate increase – if a ‘line-by-line accounting exercise cannot be gone through to clearly identify where a ‘scalpel’ could be vigorously applied to private consultant and contractor ‘blubber’?)

3) Developments with the ‘postcard’ campaign to Prime Minister John Key, where residents and ratepayers of the Auckland Council, have signed pledges to ‘consider not paying this proposed 4.9% rate increase’. ”
____________________________________________________

BACKGROUND INFORMATION:

1) 10 March 2011: ‘Open Letter/ Local Government and Official Information Act (LGOIMA) request to the CEO of Auckland Council.

Auckland Council CEO
Doug McKay

‘Open Letter /LGOIMA request’
re: Statutory duties arising from s.17 (1) of the Public Records Act 2005:

“Every public office and local authority must create and maintain full and accurate records of its offices in accordance with normal prudent business practice, including the records of any matter which is contracted out to an independent contractor”.

Dear Doug,

Please provide the following information:

1) The information which confirms that prior to amalgamation under the Auckland Council, each of the following local authorities had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor:

(Independent contractor to include ‘consultant’ contractors.)

a) Auckland Regional Council (ARC)
b) Auckland City Council
c) Manukau City Council
d) Waitakere City Council
e) North Shore City Council
f) Rodney District Council
g) Papakura District Council
h) Franklin District Council

2) Please provide the information which confirms that prior to amalgamation under the Auckland Council, how many Council Controlled Organisations (CCOs) operated under each of the following local authorities:

a) Auckland Regional Council (ARC)
b) Auckland City Council
c) Manukau City Council
d) Waitakere City Council
e) North Shore City Council
f) Rodney District Council
g) Papakura District Council
h) Franklin District Council

3) Please provide the information which confirms that prior to amalgamation under the Auckland Council, that each ‘Council Controlled Organisation’ (CCO) operating under each of the above-mentioned local authorities had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor.

4) Please provide the information which confirms that for the time that the Auckland Transition Agency (A.T.A.) was operating, that they had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor.

5) Please provide the information which confirms that for the time the Auckland Council has been operating, there has been created and maintained a (central)  ‘Register of Contracts’ established for for any matter which has been contracted out to an independent contractor.

6) Please provide the information which confirms that for the time the each of the following Auckland Council ‘Council Controlled Organistions’ (CCOs); Council organisations and ‘statutory entities’ has been operating, there has been created and maintained a (central)  ‘Register of Contracts’ established for for any matter which was contracted out to an independent contractor.

a) Auckland Council Investments (ACIC)
b) Auckland Tourism, Events and Economic Development (TEED)
c) Regional Facilities Auckland (RFA)
d) Auckland Council Property Ltd (ACPL)
e) Auckland Waterfront Development Agency (AWDA)
f) Watercare Services Ltd
g) Auckland Transport

7) Please provide the information which confirms that in each of the above-mentioned categories, auditors responsible to the Office of the Auditor-General, have double-checked that a (central) ‘Register of Contracts’ has been created and maintained.

8) Please provide the information which confirms that in accordance with normal prudent business practice, Auckland Council has now ‘amalgamated’, created and maintains full and accurate  records of any matter which has been contracted out to an independent contractor, including the above-mentioned Auckland Council ‘Council Controlled Organistions’ (CCOs); Council organisations and ‘statutory entities’.

9) Please provide the name and position of the Auckland Council employee who is ultimately responsible for the creation and maintenance of records of any matter which is contracted out to an independent contractor, as defined in s17 of the Public Records Act 2001, and would bear ultimate responsibility for any of the following offences:

http://www.legislation.govt.nz/act/public/2005/0040/latest/DLM345796.html?search=ts_act_Public+Records+Act+2005_resel&p=1#DLM345796

61 Offences

Every person commits an offence who wilfully or negligently—

(a) damages a public record; or

(b) disposes of or destroys a public record otherwise than in accordance with the provisions of this Act; or

(c) contravenes or fails to comply with any provision of this Act or any regulations made under it.

Yours sincerely,

Penny Bright

Media Spokesperson
Water Pressure Group
Judicially recognised Public Watchdog on Metrowater, water and Auckland regional governance matters.

“Anti-corruption campaigner”.

Attendee: Australian Public Sector Anti-Corruption Conference 2009
Attendee: Transparency International’s 14th Anti-Corruption Conference 2010
Auckland Mayoral Candidate 2010.
Independent Candidate Botany by-election 2011.
Independent Candidate Howick by-election 2011
https://waterpressure.wordpress.com

Ph (09) 846 9825
021 211 4 127

___________________________________________________

2) 26 April 2011: Reply from Bruce Thomas ‘Public Information Manager’ Auckland Council

(Official Information Request No. 9000108231)

26 April 2011

Dear Ms Bright

Local Government Official Information and Meetings Act 1987
Re: requests for evidence of record

I refer to your email dated 10 March 2011, which we received
on 11 March 2011, requesting information about records relating to independent contractors.

As a general comment, we note that section 17(1) of the Public records Act 2005 to which you refer does not establish an obligation to create and maintain a register of contracts and nor is there any other statutory obligation to do so.  Nonetheless, the Council is currently in the process of developing such a register.  Even once it is established, the information contained in the register is unlikely to be disclosed on the grounds that to do so would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information.  Of course, any requests will be considered on a case-by-case basis.

Please note that Council Controlled Organisations are independent entities separate from the Auckland Council.
They have their own obligations to respond to requests under the Local Government Official Information and Meetings Act.

Regarding your request, we have responded to your questions in the order in which they were raised.

1) The information which confirms that prior to amalgamation under the Auckland Council, each of the following local authorities had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor:

a) Auckland Regional Council (ARC)
b) Auckland City Council
c) Manukau City Council
d) Waitakere City Council
e) North Shore City Council
f) Rodney District Council
g) Papakura District Council
h) Franklin District Council

2) Please provide the information which confirms that prior to amalgamation under the Auckland Council, how many Council Controlled Organisations (CCOs) operated under each of the following local authorities:

a) Auckland Regional Council (ARC)
b) Auckland City Council
c) Manukau City Council
d) Waitakere City Council
e) North Shore City Council
f) Rodney District Council
g) Papakura District Council
h) Franklin District Council

Your request is refused under section 17(f) of the Act on the basis that the information requested, to the extent it may exist or be held by the Auckland Council, cannot be made available without substantial collation or research.

17. Refusal of requests

A request made in accordance with section 10 of this Act may be refused only for one or more of the following reasons, namely:

(f)      That the information requested cannot be made
available without substantial collation or research.

3) Please provide the information which confirms that prior to amalgamation under the Auckland Council, that each ‘Council Controlled Organisation’ (CCO) operating under each of the above-mentioned local authorities had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor.

4) Please provide the information which confirms that for the time that the Auckland Transition Agency (A.T.A.) was operating, that they had created and maintained a (central) ‘Register of Contracts’ for any matter which was contracted out to an independent contractor.

Your request is refused under section 17(g)(i) of the Act on the basis that the information requested is not held by the local authority and we have no grounds for believing that the information is held by another organisation.  Alternatively, your request is refused under section 17(f) on the basis cannot be made available without substantial research.

17.  Refusal of requests.

A request made in accordance with section 10 of this Act may be refused only for one or more of the following reasons, namely:

(g) That the information requested is not held by the local authority and the person dealing with the request has no grounds for believing that the information is either-

(i) Held by another local authority or a Department or Minister of the Crown or organisation;

5) Please provide the information which confirms that for the time the Auckland Council has been operating, there has been created and maintained a (central)  ‘Register of Contracts’ established for for any matter which has been contracted out to an independent contractor.

7) Please provide the information which confirms that in each of the above-mentioned categories, auditors responsible to the Office of the Auditor-General, have double-checked that a (central) ‘Register of Contracts’ has been created and maintained.

8) Please provide the information which confirms that in accordance with normal prudent business practice, Auckland Council has now ‘amalgamated’, created and maintains full and accurate  records of any matter which has been contracted out to an independent contractor, including the above-mentioned Auckland Council ‘Council Controlled Organistions’ (CCOs); Council organisations and ‘statutory entities’.

As mentioned at the beginning of this letter, this information does not yet exist and your request is therefore refused under section 17 (e) of the Act.

17. Refusal of requests

A refusal made in accordance with section 10 of this Act may be refused only for one or more of the following reasons, namely:

(e)   That the document alleged to contain the information requested does not exist or cannot be found.

6) Please provide the information which confirms that for the time the each of the following Auckland Council ‘Council Controlled Organistions’ (CCOs); Council organisations and ‘statutory entities’ has been operating, there has been created and maintained a (central)  ‘Register of Contracts’ established for for any matter which was contracted out to an independent contractor.

a) Auckland Council Investments (ACIC)
b) Auckland Tourism, Events and Economic Development (TEED)
c) Regional Facilities Auckland (RFA)
d) Auckland Council Property Ltd (ACPL)
e) Auckland Waterfront Development Agency (AWDA)
f) Watercare Services Ltd
g) Auckland Transport

The information, to the extent it may exist, is not held by the Auckland Council and your request has been transferred to the organisations listed above.  A copy of our letter of transfer is attached for your information.

9) Please provide the name and position of the Auckland Council employee who is ultimately responsible for the creation and maintenance of records of any matter which is contracted out to an independent contractor, as defined in s17 of the Public Records Act 2001, and would bear ultimate responsibility for any of the following offences:

61 Offences

Every person commits an offence who wilfully or negligently—

(a) damages a public record; or

(b) disposes of or destroys a public record otherwise than in accordance with the provisions of this Act; or

(c) contravenes or fails to comply with any provision of this Act or any regulations made under it.

The Auckland Council has a corporate responsibility to comply with the Public Records Act 2005.

You have the right in accordance with section 27(3) of the LGOIMA to make a complaint to the Office of the Ombudsman regarding council’s refusal to release any information under this letter and for the delay in getting this response to you.

If you have any further queries please contact me on
(09) 301 0101, quoting Official Information Request No. 90000108231

Yours sincerely

pp (? not legible)

Bruce Thomas
Public Information Manager
Democracy Services

_____________________________________________

Penny Bright

Media Spokesperson
Water Pressure Group
Judicially recognised Public Watchdog on Metrowater, water and Auckland regional governance matters.

“Anti-corruption campaigner”.

Attendee: Australian Public Sector Anti-Corruption Conference 2009
Attendee: Transparency International’s 14th Anti-Corruption Conference 2010
Auckland Mayoral Candidate 2010.
Independent Candidate Botany by-election 2011.
Independent Candidate Howick by-election 2011
https://waterpressure.wordpress.com

Ph (09) 846 9825
021 211 4 127