Inside information: do elected members have the right to see legal advice?

Tuesday 12 July, 2022

A Council’s recent refusal to provide a councillor with access to legal advice has raised the question as to the extent of councillors’ rights to documents held by a local authority.

A Wellington City councillor requested access to external legal advice, held by Wellington City Council, regarding the lawfulness of a notice of motion calling for opposition to the proposed airport expansion. A summary of the advice had been included in Council reports and in-house counsel had been present at a meeting to speak to it.The Chief Executive refused the request for access, maintaining that councillors were sufficiently informed on the legal risk through summarised reports and in-house counsel, and that Council needed to protect its legal position by not disclosing the advice.

At common law, councillors are entitled, by virtue of their office as elected members, to have access to all information held by council as is reasonably necessary to enable them to effectively perform their duties. This reflects that elected members are accountable to the public.  The right to access documents is qualified by whether there is a ‘need to know’ the particular information requested.  Examples of where information would fall outside a councillor’s ‘need to know’ scope may include confidential internal employment matters, information where a councillor is conflicted and information arising out of specialist committees of which that councillor is not a member.

Councils have an interest in limiting the unconstrained and widespread disclosure of privileged information.  If privileged documents (or information contained in them) are shared too widely, privilege (including privilege in related documents) may be lost entirely.  This may mean it is appropriate for a council to impose conditions on the way in which such information is made available to elected members. For example, in 2018 the Chief Ombudsman upheld Auckland Council’s decision to limit councillors’ access to pre-feasibility reports on a proposed stadium project by only permitting physical inspection in a secure location (as opposed to providing electronic copies). The Chief Ombudsman considered that this approach both addressed the councillors’ rights to be informed and recognised the sensitivity of the particular information requested.

It is important that privileged material is carefully and sensitively managed by councils so that elected members are well-informed without inadvertently losing the usual protections of legal advice privilege.  Please contact Kate Cornegé or Megan Crocket for advice on matters related to councillors’ rights of access to documents and maintaining legal privilege in a local authority context.

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