Ombudsman complaint re DCC reply to LGOIMA requests #CSTfiles

Received from Bev Butler
Fri, 10 Jul 2015 at 11:25 a.m.

From: Bev Butler
To: complaint @ ombudsmen.parliament.nz
Subject: Ombudsman complaint: Whereabouts of secure storage facility?
Date: Fri, 10 Jul 2015 11:19:53 +1200

{Address and phone number removed. -Eds}

Friday 10 July 2015

Dear Sir/Madam

I wish to make a complaint about the Dunedin City Council’s reply to a recent LGOIMA request (copied below) where I ask the whereabouts of the secure storage facility and the date the DCC/CST documents were placed in the facility.
Please also refer to my email to Ombudsman Office dated 15 June 2015 where I express concern as to the safety of the DCC/CST documents.

In the DCC response it states:

“The location of the secure storage facility is withheld pursuant to s7(2)(b)(ii) of LGOIMA to avoid prejudicing the commercial position of the person who is subject of the information.”
This is not a valid reason to refuse the request because s7(2)(b)(ii) only provides protection for “the person who supplied or who is the subject of the information”. This could be a valid reason to refuse to provide some of the documents, but not a valid reason to refuse to provide the location of the documents.

The other reason for refusing to provide the location was: “pursuant to s7(2)(f)(ii) of LGOIMA to enable the effective conduct of public affairs by protecting officers and persons from improper pressure or harassment.”
This is invalid because there are no public affairs being conducted that would be affected by revealing the location of the documents. More importantly, this only applies to “members or officers or employees of any local authority”. Revealing where the documents are, will not create any “improper pressure or harassment” on Council staff or Carisbrook Stadium Trust (CST) members.

The DCC in their response to the date the documents were stored in the secure storage facility state:
“The CST are unable to confirm when the documents were shifted to the storage facility. The person who can confirm this is now resident in Australia. Attempts were made to contact her but she is hospitalised, recovering from a serious illness and was unable to provide the information. Your request is therefore technically declined pursuant to s17(g) of LGOIMA as the information requested is not held.”
The DCC confirmed this morning that the documents were moved with permission of the CST. Therefore, if the documents were moved with the permission of the CST then section 2(6) of LGOIMA applies because the CST are subject to LGOIMA given their special agency agreement with the DCC.

I request the Ombudsman Office investigate the above.

Yours sincerely
Bev Butler

{See previous post for chain of correspondence up to and including Ms Graham’s reply at Thu, 9 Jul 2015 21:42:53 +0000, provided in full with Ms Butler’s complaint to the Ombudsman. -Eds}

Related Posts and Comments:
9.7.15 DCC: Council-owned CST files whereabouts not declared
27.6.15 Ratepayer boxes #saga
20.6.15 DCC / CST document scramble #LGOIMA

Posted by Elizabeth Kerr

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8 Comments

Filed under Business, Construction, CST, DCC, Democracy, DVML, Economics, Name, New Zealand, OAG, Ombudsman, People, Politics, Project management, Property, Site, Sport, Stadiums

8 responses to “Ombudsman complaint re DCC reply to LGOIMA requests #CSTfiles

  1. Cats and pigeons come to mind! Go Bev!

  2. Elizabeth

    Fri, 10 Jul 2015 at 2:17 p.m.
    Bev Butler notes to whatifdunedin that the complaint has “already been allocated a reference number”.

  3. Elizabeth

    Received from Bev Butler
    Mon, 13 Jul 2015 at 2:20 p.m.

    From: Bev Butler
    To: complaint @ ombudsmen.parliament.nz
    Subject: Ombudsman Complaint: Farry & Co. Law Firm/CST lawyers
    Date: Mon, 13 Jul 2015 14:14:32 +1200

    {Address and phone number removed. -Eds}

    Monday 13 July 2015

    Dear Sir/Madam

    I wish to make a formal complaint re the Dunedin City Council for a breach of the LGOIMA.
    Below are three LGOIMA requests I submitted on 8th and 10th June 2015 which have not been responded to within the statutory period of 20 working days.
    As background, I wish to add that the principal of the law firm Farry & Co is Richard Farry, brother of Malcolm Farry, Chair of the Carisbrook Stadium Trust (CST).

    I ask that the Ombudsman investigate this breach of LGOIMA.
    Thank you.

    Yours sincerely
    Bev Butler

    LGOIMA Request 1 : Itemised Farry & Co. Law account

    From: Bev Butler
    To: Grace Ockwell [DCC]
    CC: Sandy Graham [DCC]
    Subject: LGOIMA Request: Itemised Farry & Co. Law account
    Date: Mon, 8 Jun 2015 12:25:55 +1200

    {Address removed. -Eds}

    Monday 8 June 2015

    Dear Grace

    I request an itemised account of the tax invoice of Farry & Co dated 28/11/08 ref no. 14547 issued to the CST.
    This request will need to be made to Farry & Co Law.
    Thank you.

    Kind Regards
    Bev Butler

    PS
    I have attached a copy of the relevant invoice for your convenience.

    Farry & Co Law Invoice re SLA

    █ Download: Farry & Co Law Invoice re SLA [PDF, 487 KB]

    LGOIMA request 2 : legal advice re LGOIMA

    From: Bev Butler
    To: Grace Ockwell [DCC]
    CC: Sandy Graham [DCC]
    Subject: LGOIMA request: legal advice re LGOIMA
    Date: Mon, 8 Jun 2015 13:20:12 +1200

    {Address removed. -Eds}

    Dear Grace

    Recently the Chair of CST, Mr Malcolm Farry, was reported in the ODT on 22/5/15 as follows:

    The trust ”consider that we are not subject to [the Act], because we are now a private trust”, although recent legislative changes ”may give a different dimension to that”, he said.

    I request:
    1. A copy of the legal advice which supports the Trust’s position on this issue prior to the recent legislative changes.
    2. If no such written legal advice exists, I request the name of the lawyer who verbally advised the Trust that they were not subject to the Act through their agency agreement with the DCC, given that the DCC already had two legal opinions to the contrary.

    Kind Regards
    Bev Butler

    LGOIMA Request: Itemised Farry & Co. Law account

    From: Bev Butler
    Sent: Wednesday, 10 June 2015 12:52:22 p.m.
    To: Grace Ockwell [DCC]
    Cc: Sandy Graham [DCC]

    {Address removed. -Eds}

    Wednesday 10 June 2015

    Dear Grace

    I request the following:
    1. A copy of the final signed Service Level Deed dated 21 November 2008.
    2. A copy of all letters of advice/correspondence pertaining to the final signed Service Level Deed dated 21 November 2008.

    Kind Regards
    Bev

    [ends]

  4. Gurglars

    The mayor was there
    The council in tow
    The bill confirms it,

    The cloak lifted- Oh No!

  5. Bev Butler

    It is now nearly 2 months since it was reported in the ODT that the CST was fully co-operating and yet they are still failing to comply with the provisions under LGOIMA to release official information.

  6. Hype O'Thermia

    ODT uses the Humpty Dumpty dictionary when dealing with “sensitive” issues. I don’t have a copy to hand, but from memory “fully co-operating” means “making bullshit assurances; ignoring; obstructing; defying”.

  7. Bev Butler

    You’ll notice the Farry & Co account refers to settling the final Service Level Deed under urgency. I have been informed that lawyers may charge more for doing work under urgency. So why then did this November 2008 account refer to urgency when the final Service Level Deed wasn’t signed until 2010?
    In 2012 when I first asked for the Service Level Deed and was sent the one dated January 2010, I found it incredulous that the CST had over $70 million pouring through it with no signed Deed in place. I then requested if there was an earlier version. The DCC governance staff informed me extensive searches had been made but no earlier signed Deed could be found. So is the Farry & Co billing account fraudulent? The answer is NO. There was another Service Level Deed signed in November 2008. So, why has it not been released within the statutory period? Obviously, the DCC have been unable to locate their copy. Did a former DCC employee misfile it?
    So we now have three organisations in possession of this Deed, namely Anderson Lloyd (lawyers), Farry & Co (lawyers) and the CST who are “fully co-operating”.

  8. Bev Butler

    In the ODT (24/6/15) it is reported:
    “However, he (Mr Farry) reiterated CST spending went through “exhaustive” sign-off and audit processes.”

    Clearly, untrue.
    Below is just one example of the CST’s lack of transparency.
    Why is the above Farry & Co (lawyers) account/transaction not declared under the Related Party Transactions?

    From CST Financial Statement to year ended June 2009:

    5. RELATED PARTY TRANSACTIONS

    During the year ended 30 June 2009 transactions with related parties were as follows:

    Legal Fees of $314,511 were paid to Anderson Lloyd. A.W. Baylis is a board member of Anderson Lloyd and a trustee of Carisbrook Stadium Charitable Trust (2008: $82,699). $59,455 is payable to Anderson Lloyd as at 30 June 2009 (2008: $11,175).

    Administration Expenses of $5,789 were paid to Saba Limited, M.S. Farry is a director of Saba Limited and a trustee of Carisbrook Stadium Charitable Trust (2008: $4,070). $614 is payable to Saba Limited as at 30 June 2009 (2008: $nil).

    Consultancy services of $2,269,279 were paid to Arrow International Limited. Arrow International Limited is a subsidiary of Arrow Group Limited. R.D. Anderson is a director/shareholder of Arrow Group Limited and a trustee of Carisbrook Stadium Charitable Trust (2008: $5,574,375). $194,548 is payable to Arrow International Limited as at 30 June 2009 (2008: $1,042,252).

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