Ombudsman complaint re DCC reply to LGOIMA requests #CSTfiles

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

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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}

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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

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Posted by Elizabeth Kerr

DCC: Council-owned CST files whereabouts not declared

Updated post Fri, 10 Jul 2015 at 1:22 p.m.

Received from Bev Butler
Thu, 9 Jul 2015 at 12:32 p.m.

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From: Bev Butler
Sent: Wednesday, 1 July 2015 1:46 p.m.
To: Sandy Graham [DCC]; Grace Ockwell [DCC]
Subject: LGOIMA Request: Whereabouts of secure storage facility?

Wednesday 1 July 2015

Dear Sandy and Grace

It was recently stated in the media that the DCC/CST documents were stored in a “secure storage facility”.
Also on Monday 29 June 2015, the CST stated:
“The CST advise that there is no charge for the storage and as such, there is no invoice.”

I request the location where these documents were stored, the type of “secure storage facility” and on what date the documents were taken to the secure storage facility.

Thank you.
Kind Regards
Bev

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From: Sandy Graham [DCC]
To: Bev Butler
CC: Grace Ockwell [DCC]
Subject: RE: LGOIMA Request: Whereabouts of secure storage facility?
Date: Wed, 8 Jul 2015 22:14:28 +0000

Dear Bev

I refer for your request for information about the CST secure storage facility where you asked the following questions:.
Where are the documents stored?
What type of secure storage facility it is?
What date were the documents taken to the facility?

I provide answers to these questions as follows:

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 and 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.

The facility is a commercial storage facility. I have already advised that it is not EziStor. Any further details that may identify the facility are however withheld pursuant to s7(2)(b)(ii) of LGOIMA to avoid prejudicing the commercial position of the person who is subject of the information and 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.

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.

As we have withheld information you are entitled to a review of our decisions by the Office of the Ombudsman.

Regards
Sandy

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From: Bev Butler
To: Sandy Graham [DCC]
CC: Grace Ockwell [DCC]
Subject: RE: LGOIMA Request: Whereabouts of secure storage facility?/Clarification
Date: Thu, 9 Jul 2015 14:15:33 +1200

Dear Sandy and Grace

Appreciate clarification before contacting Ombudsman.
In the response it states:
“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.”
Given the statement above which implies that there is only one person in the world who knows when the documents were moved, is it correct to assume the documents were moved by the “sick lady” without the permission of the CST?
Is it also correct to assume the documents were placed in the secure storage facility without the knowledge of the secure storage facility’s owner, given the “sick lady” in Australia is the only person who knows when the documents were stored there?

Kind Regards
Bev

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From: Sandy Graham [DCC]
To: Bev Butler
CC: Grace Ockwell [DCC]
Subject: RE: LGOIMA Request: Whereabouts of secure storage facility?/Clarification
Date: Thu, 9 Jul 2015 21:42:53 +0000

Dear Bev

Your assumptions are incorrect.

Regards
Sandy

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Related Posts and Comments:
27.6.15 Ratepayer boxes #saga
20.6.15 DCC / CST document scramble #LGOIMA

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Posted by Elizabeth Kerr

Ratepayer boxes #saga

Once upon a time, Rugby louts and owners of industrially-zoned land at Dunedin decided they deserved a new Rugby stadium and some personal spending CASH! (ie ratepayer money)

It wasn’t long before DCC was vigorously lobbied from within and without by slimy fatcats, to build a Hopeless Stadium.

The evil plan was to saddle ratepayers with outlandish debt for decades and decades.

It also transpired that the Chin Council thought only slightly about lines in the sand but agreed ‘it’s perfectly alright to rob the poor to support the well-off’ —the practice continues to this very day, Mayor Cull’s merry band of dimwits subsidise DVML and have recently transferred $30m of Hopeless Stadium debt back onto the DCC books.

Going back a treacle-filled step or two… the spendthrift Carisbrook Stadium Charitable Trust (CST), headed by Malcolm Farry, became agent to the Council via a Service Level Agreement (SLA), to see in the Hopeless Stadium construction project and associated fundraising.

[Aside, like it didn’t matter: Farry in his construction safety hat and dayglo vest failed miserably at raising public donations for the Hopeless Stadium.]

Long short… regular as well as ‘other’ payments were made by DCC to CST and co-greedy sods without much corroborating paperwork.

Despite non-accountability and lack of transparency, and the odd crucial missing document, there’s a stash of CST files kept “in storage” somewhere – files to drive a bulldozer through, lawfully the property of the Council, paid for by ratepayers.

Turns out two of DCC’s most senior executives, with Malcolm Farry, appear to have no interest whatsoever in surrendering the files for independent forensic audit. They’ll only retrieve file boxes in batches, while pedalling strongly backwards.

The files are not sealed, seized or safe. Where are they? DCC will not say. Farry won’t say. Fairytales are being told.

The files were long ago officially requested through the Local Government Official Information and Meetings Act (LGOIMA) by Dunedin resident Bev Butler. They’re also subject to the Public Records Act.

The Ombudsmen’s Office is involved, due to deliberate lack of co-operation shown by CST and DCC to supply copy of the original files to Ms Butler in a timely manner.

Have the files been thrown into plastic shopping bags, shredded or dumped? We simply don’t know.

CST and DCC are equally culpable, they’re both prepared to lie and defer – What if? can only imagine the files might be as tidy as this.

If it takes a court order…..

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Posted by Elizabeth Kerr

*Image: clipart.org – Filing Cabinet Overload

DCC / Carisbrook Stadium Trust document scramble #LGOIMA

Received from Bev Butler
Fri, 19 June 2015 at 9:13 a.m.

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From: Bev Butler
To: Lee Vandervis, Dave Cull, David Benson-Pope, Hilary Calvert, John Bezett, Doug Hall, Aaron Hawkins, Mike Lord, Jinty MacTavish, Andrew Noone, Neville Peat, Chris Staynes, Richard Thomson, Andrew Whiley, Kate Wilson
Subject: Mayor and Councillors/Security of DCC/CST stadium documents
Date: Fri, 19 Jun 2015 08:50:20 +1200

Friday 19 June 2015
 
Dear Mayor Cull and Councillors
 
During my recent DCC Annual Plan submission I requested a full forensic audit of the Carisbrook Stadium Trust (CST). You will recall that preliminary informal investigations found that documentation has been withheld. The CST and the previous CEO of the DCC both attempted via undisclosed legal opinions to ensure that this documentation remained hidden from any investigation or even LGOIMA requests and it is now more than clear that the CST, as an agent of the DCC, have no right to retain ANY documentation that relates to the entire period which the CST were in any way acting as an agent of the DCC. The CST appears to have no other function than continuing to receive donations from private persons as part of the private sector funding so, given that, I do not believe ANY documentation should be withheld from the DCC.
 
Since my public call for a full forensic investigation I have been greatly concerned about the security of the DCC/CST documents all of which were financed with ratepayer money.
 
It has now been revealed that the Chair of CST, Mr Malcolm Farry has removed most of the documents from the stadium and dumped them in a container. By doing so I believe that he has demonstrated a desire to thwart any investigation into any inappropriate spending of ratepayers money which could be revealed by a forensic audit, but he has also on the face of it, essentially misappropriated the documentation which has been, and remains, the property of the DCC.
 
On Monday 15 June 2015 I also contacted the Office of the Ombudsman expressing my concern over the security of the documents.
A representative of the Ombudsman Office then rang the DCC Governance Manager on Monday afternoon.
 
As elected representatives I believe you should be made aware of the situation.
 
Below is an urgent LGOIMA request I submitted on Tuesday 16 June 2015 followed by an acknowledgement of the request.
Further down the page is the earlier correspondence I had with the DCC CEO requesting the documents be secured.
 
Kind Regards
Bev Butler

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From: Bev Butler
To: Grace Ockwell [DCC], Sandy Graham [DCC]
CC: Sue Bidrose [DCC]
Subject: URGENT LGOIMA Request: Security of DCC/CST stadium documents
Date: Tue, 16 Jun 2015 09:17:33 +1200

Tuesday 16 June 2015
 
Dear Sandy and Grace
 
Given the following:
1. Changes to LGOIMA recently came into force on 26 March 2015.
In light of these changes, and especially the changes to s2(6) which unequivocally states that a local authority will be deemed to hold any information held by an independent contractor in its capacity as contractor.
2. Under section 3 of Schedule 5 of the Service Level Agreement (SLA) between the CST and DCC it states:
“All files, records and other information held by CST and DVML will be held at the offices of DVML and made available to CST and DVML Board members and staff as required.”
3. DCC Governance staff were told by the Chair of CST, Mr Malcolm Farry, that ALL the DCC/CST stadium documents were in a locked room at DVML offices as per the SLA and only Malcolm Farry and his secretary had keys to the locked room. 
4. Recently it has transpired that MOST of the documents are not in the DVML offices.
5. Most of the documents are now in a container.
 
Therefore, given the LGOIMA legislation, the contract between DCC and CST and other information above, I request the following:
1. On what date were the DCC/CST documents removed from the DVML offices?
2. Apart from Malcolm Farry, who else was involved in the removal of the documents?
3. Which other CST trustees were aware of the removal of the documents?
4. Where exactly is the container located?
5. How are the documents stored in this container? Are they in cardboard boxes, supermarket bags, filing cabinets or thrown in piles or some other storage method?
6. Will the DCC report this removal of local government documents to the Police given this was done without DCC permission?
7. Will the DCC now seize these documents as is their legal right under the SLA?
8. The name of the law firm and lawyer who has been providing legal advice to the DCC over the security of the DCC/CST stadium documents?
 
Given the seriousness of this situation, I am requesting that this request be treated with urgency.
 
Kind Regards
Bev

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From: Sandy Graham
To: Bev Butler
CC: Sue Bidrose, Grace Ockwell
Subject: RE: URGENT LGOIMA Request: Security of DCC/CST stadium documents
Date: Tue, 16 Jun 2015 02:00:11 +0000

Dear Bev
 
Thank you for your request below. I note that you have requested urgency and we will consider this request. If we decide that we will not progress the request urgently, you will receive a response as soon as practicable or within twenty working days.
 
I do wish to formally advise that I have sighted the CST files and after conversations with the CST have no concerns about their security. I note your reference to the provisions of the Deed between the CST and the DCC and will work to give effect to that with the CST over coming days.
 
Regards
Sandy

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From: Bev Butler
To: Sandy Graham
CC: Sue Bidrose, Grace Ockwell
Subject: RE: URGENT LGOIMA Request: Security of DCC/CST stadium documents
Date: Tue, 16 Jun 2015 14:30:55 +1200

Dear Sandy
 
Thank you for your email.
Do the CST still have access to these documents?
 
Kind Regards
Bev

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From: Bev Butler
Sent: Tuesday, 16 June 2015 3:47:51 p.m.
To: Sandy Graham
Cc: Sue Bidrose, Grace Ockwell

Dear Sandy
 
Further to your email below where you state:
“I note your reference to the provisions of the Deed between the CST and the DCC and will work to give effect to that with the CST over coming days.”
Can I assume that the DCC will be taking control of the documents by the end of the week as per SLA?
 
Kind Regards
Bev

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From: Bev Butler
Sent: 24 May 2015 4:16 p.m.
To: Sue Bidrose
Subject: Security of stadium documents
Importance: High
 
Sunday 24 May 2015
 
Dear Dr Bidrose
 
I wish to formally request that the DCC secure the CST stadium documents.
Some time ago, I was made aware of a threat by Mr Malcolm Farry, Chair of CST, to remove the documents from the locked stadium room.
I think it is essential to ensure the security of these documents.
 
Given Mr Farry’s ongoing refusal to release information even with the recent change in legislation to LGOIMA and given the false statements and the malicious attack on me which he made on the front page of the ODT on Friday 22 May 2015 I believe it may be necessary to: 
(a) change the locks as I understand Mr Farry has the only key;
(b) secure any external window(s) from possible break-in or access to damage the documents.
(c) ensure Mr Farry is escorted by a security guard at all times whilst in the document room if he does now decide to co-operate.
 
Yours sincerely
Bev Butler
 
PS I think it fair to inform you I will be making this request public in a few days time.

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From: Sue Bidrose
To: Bev Butler
Subject: RE: Security of stadium documents
Date: Fri, 5 Jun 2015 03:38:28 +0000

Hi Bev
 
Thanks for the conversation. To just put it in writing, I have had discussions with the CST representative and we are working together to ensure DCC has full access to CST documents pertaining to the stadium build. Most of the documents are not at the stadium and therefore ‘locking the door’ would not only be likely to provoke legal retaliation, it would be counterproductive in our working together to ensure DCC has the documents that we are legally required to have.
 
Kind regards
 
Sue

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From: Bev Butler
To: Sue Bidrose
Subject: RE: Security of stadium documents
Date: Fri, 5 Jun 2015 17:22:51 +1200

Hi Sue
 
Thanks for the email.
fyi
On reading the Service Level Agreement today on page 20 it states under Schedule 5 – Resources/Administration
3. All files, records and other information held by CST and DVML will be held at the offices of DVML and made available to CST and DVML Board members and staff as required.
 
Kind regards
Bev

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Posted by Elizabeth Kerr