By Trevor Busch
Municipalities in Alberta are by definition public organizations governed by an elected body of representatives, but they still have the ability — under strict and limited conditions — to close proceedings to the general public through what is known as an in-camera discussion.
In-camera is a legal term meaning “in private.” When a council goes in-camera, it means the council meeting is closed to the public. In-camera discussions are to be listed on the agenda for a meeting in which they are held, and should contain a “confidential” heading as well as providing a brief description of the topic.
“The agenda is the outline of the council meeting, so if council is going to go in-camera, it should be indicated on the agenda and also indicate the section of FOIP that allows them to go in camera for that subject,” said Shannon Greer, a spokeswoman with Alberta Municipal Affairs.
In colloquial terms, topics that are permitted to be discussed in-camera by a municipal council are often referred to as “land, legal or labour,” but there is actually much more that can fall under the umbrella of exceptions provided under the Freedom of Information and Protection of Privacy Act (FOIP).
“In general terms, the exceptions include matters where disclosures could be harmful to personal privacy, individual or public safety, law enforcement, intergovernmental relations, or economic or other interests; reveal confidential evaluations, local public body confidence, or advice from officials; or disclose information that is subject to legal privilege,” said Greer.
Section 197 of the Municipal Government Act (MGA) states that councils and council committees must conduct their meetings in public unless the matter to be discussed is within one of the exceptions to disclosure in Division 2 of Part 1 of the FOIP Act (Sec. 16-29).
These limited exceptions for discussion include third party business interests (Sec. 16), third party personal privacy (Sec. 17), individual or public safety (Sec. 18-19), law enforcement (Sec. 20), intergovernmental relations (Sec. 21-24), and economic or other interests (Sec. 25-29).
Although the FOIP Act includes various exceptions for municipal councils to avoid public discussion of certain specific topics, violation of many of the Act’s regulations could result in harsh penalties for the offending party, including elected councils.
“FOIP does have an offences and penalties section and depending on the section of FOIP that is under question, the outcome of any prosecution could (result) in a fine anywhere from $2,000 to $500,000,” said Greer.
Changes to the MGA that have been proposed through Bill 20, the Municipal Government Amendment Act, include a change to Sec. 197, although it is still unclear what this change with specifically entail.
“Bill 20, Municipal Government Amendment Act, 2015, includes an amendment to Section 197 that addresses when and how a municipal council can meet in-camera,” said Greer. “This proposed amendment is awaiting proclamation.”
Alberta Municipal Affairs suggests public bodies should not reveal confidential employee evaluations, disclose “local public body confidences, or advice from officials,” or disclose “information that is subject to any kind of legal privilege.”
For example, a discussion regarding the employment of an individual should be held in-camera to protect the privacy of that individual. Preliminary meetings with developers (at their request or council’s discretion) describing a new land use development should be held in-camera (Sec. 16).
Alberta Municipal Affairs encourages municipal governments to act within the bounds and regulations of the MGA and FOIP Acts.
But, Greer noted it does not closely monitor the decisions of local governments to ensure proper compliance with both acts.
“Municipal Affairs supports an open local government process that engages its electors wherever possible. However, it is not the ministry’s role to determine the appropriateness of a particular council decision to discuss a particular matter in a closed meeting. Municipal Affairs encourages municipalities to not only meet the minimum standards for public process set out in the MGA, but to actively promote public engagement at every level, including meetings of council.”
A resolution of council is required to go in-camera to discuss matters covered by the exceptions to disclosure in the FOIP Act. The council meeting minutes should later reflect that a motion was made to move into an in-camera session, and then another to move out of the in-camera session and return to the open meeting. Council members, the CAO, and any others included in the in-camera discussion are required to keep in confidence what was discussed until the item is discussed at a meeting held in public.
Sec. 197(3) of the MGA prohibits the passing of a resolution or bylaw during in-camera discussion (with the exception of a motion to revert back to a public meeting). If a direction or decision is reached in-camera, then a resolution must be made in the open meeting so that council’s direction can be recorded and acted on.
According to Alberta Municipal Affairs, municipalities often have additional requirements outlined in their procedural bylaw that clarify in-camera discussions, such as identifying when they are held during a regular council meeting.
“Each municipality may have policies and procedures regarding the use of in-camera meetings, but the Municipal Government Act (MGA) sets out the legislative framework that applies to the conduct of meetings. The provisions of the MGA regarding public presence at meetings are intended to promote public involvement and the transparency of the local government process,” said Greer.
All members of council, guests (at the discretion of council), and most times, the CAO may attend in-camera discussion. The media and general public are barred from closed discussion, but can return to the council meeting following the conclusion of in-camera discussion. Alberta Municipal Affairs “strongly recommends” that an in-camera discussion not be recorded, as any notes or minutes taken during the discussion may be requested as part of a FOIP request.
The MGA sets out clear requirements for municipal councils to conduct their business openly, except in very limited and specific circumstances. According to Alberta Municipal Affairs, the “powers of a municipal council are balanced by councils’ accountability to the citizens who elect them. It is therefore essential that citizens are allowed to take an active interest in the development and direction of our local governments and express views to their locally elected representatives”.
“If a person believes that council went into in-camera to debate a matter that should have been discussed in public according to the Freedom of Information and Protection of Privacy Act, they could bring this concern to the attention of their local council, and if they are not satisfied with the response, they may contact the Office of the Information and Privacy Commissioner of Alberta,” said Greer.
Under guidelines laid down by Alberta Municipal Affairs, as an elected body municipal councils should avoid conducting business in-camera, including discussion of difficult topics such as budget deliberations, capital expenditures, tax recoveries, salary ranges or hiring of additional municipal staff, bylaw amendments, subdivision proposals, and any contentious issues such as sensitive local issues.
“Municipal administrators should be aware of the very limited and specific circumstances in which matters being discussed by elected bodies are within the exceptions to disclosure in Division 2 of Part 1 of the Freedom of Information and Protection of Privacy Act, and provide recommendations to elected bodies accordingly,” said Greer.
Set to be further reviewed and possibly amended during the fall session of the legislature, suggestions for an amended MGA involving enhanced transparency and accountability have included the potential for establishing a legislated body responsible for clarifying the legislation and enforcing matters related to municipal governance, assessment, and planning; the creation of a municipal ombudsman or auditor general; municipal inspectors or assessment auditors, or the creation of new inclusions to deal with clarification and non-compliance with the act; and the implementation of a code of conduct for elected officials.
“Bill 20, Municipal Government Amendment Act, 2015, also includes an amendment that would make it mandatory for a municipality to pass a bylaw adopting a Code of Conduct for council members,” said Greer. “The intent of this amendment is to enhance the accountability and transparency of municipal governments in Alberta. This amendment is not currently in effect and is awaiting proclamation.”