This response was received by email from FNDC, in which they fail to provide any answers to the request above:

Dear Mr Claydon

I refer to your official information request made on 24 August 2021, Council’s preliminary response for further information dated 24 February 2021, together with your email of 26 August 2021 (as per the email trail below). This request has been referred to Legal Services for consideration in accordance with the provisions of the Local Government Official Information and Meetings Act 1987 (the ‘LGOIMA’).

The request of 24 August 2021 related to an earlier request made by you on 15 July 2021 (RFS 4070073) to which Council had replied on 9 August 2021. To refresh your memory of what was requested and what was provided, please find attached a copy of this earlier request and of Council’s response. You specifically asked for a copy of the following Council’s policies (Dealing with Complaints Policy; Fraud, Corruption and Whistle Blower Policy; Email Usage Policy; Gifts and Inducements Policy; Workplace Harassment, Discrimination and Bullying Prevention Policy). You also asked for a copy of Council’s Conflicts of Interest processes and management plans. Pursuant to your request these were all provided to you.

In relation to Council’s response however you stated on 24 August 2021 “Although your response appears to include many of the listed documents, the documents relating to procedures for investigation of complaints do not appear to be comprehensive or complete.

In particular they do not address the processes for dealing with complaints originating from outside FNDC. I would like to please receive all documents which address the topic of processing complaints from any source, or otherwise discovering misconduct or criminality amongst FNDC staff.

In particular, what complaints policy should be followed by the CEO, councillors or other staff when receiving complaints of serious criminal misconduct by senior staff members such as in-house counsel George Swanepoel (who has recently been charged with a criminal offence).

Are there any procedures or guidelines as to what should happen when FNDC is notified by a non-staff member of misconduct by a staff member?

Are there any procedures as to what should happen when a staff member is charged with a criminal dishonesty offence? Including whether, when and how that staff member should be suspended?

Please provide all related documents including internal discussions and correspondence about these issues.” (my emphasis added).

The documents provided in answer to the request of 15 July 2021 were all those sought that Council held.

LGOIMA request - 24 August 2021 (as copied above)

Council notes that you will have read in the Disciplinary Matters Policy previously provided to you “This policy aims to ensure that all disciplinary action is justified and carried out in a procedurally fair manner, in accordance with good faith obligations and the requirements of the Employment Relations Act 2000.” “Any information about employment matters will be kept confidential. Personal information about any individual in relation to […], involvement in an investigation or disciplinary action will be treated in accordance with the Privacy Act 2020. For privacy reasons, it is important to keep any information confidential to those directly involved in the incident. The policy goes on to outline the “disciplinary procedure to be used as a basis for action where an incident/event deems it necessary after relevant investigation by management in liaison with People & Capability.[…] (my emphasis added).

You will also have read “It may be deemed ‘necessary’ for a formal investigation to take place to establish the facts of an allegation before it can be determined if disciplinary action is required. Investigations must be done in good faith and use natural justice principles. This includes not jumping to conclusions before going through the process. A test for this is ‘what a fair and reasonable employer could have done’.”

Council is bound to manage and comply with any alleged disciplinary issues and investigations in the manner set out in Employment Law. (You were informed that relevant legislation on due process includes the Employment Relations Act 2000 and the Privacy Act 2020.) There is a veritable wealth of information online that is already fully and publicly available to you about employment complaints and investigations. Council considers that basic research on your part would locate the information you are seeking.

Therefore in relation to your request of 24 August 2021, Council relies upon section 17(d) of the LGOIMA as follows:

17 Refusal of requests
A request […] may be refused only for 1 or more of the following reasons, namely: […]

(d) that the information requested is […] publicly available.

Council wishes to make it clear that it does not accept a complaint simply on face value. That is just because it is said that Mr Swanepoel is being investigated for misconduct and that the New Zealand Police are investigating charging Mr Swanepoel with a criminal dishonesty offence etc. - that that is necessarily true. Further, your assertions that misconduct or criminality has been discovered etc. arguably imply this as fact – whereas under Employment Law these are merely allegations that have not been proven to date with any reliable substantiating evidence. It is noted that your complaints are simply your word and personal interpretation of events. Council considers that the comments made about Mr Swanepoel appear immoderate and lack impartiality.

As you would reasonably expect - how an investigation is conducted depends upon the type of complaint – for example, is it about employee conduct or a criminal matter? If the complaint related to criminal charges etc. then it may well be put on hold and Council Management would wait until an outcome was reached by the New Zealand Police, before looking at it with an employment lens. Generally however on the receipt of a complaint, the alleged conduct would be looked into and a fair and balanced assessment made as to whether any further investigation is required. A full investigation would not be undertaken and an employee suspended or fired without just cause. Sometimes insufficient evidence is provided to enable Council to make a decision - and it may be that the subject of the complaint is not even informed where there is little reliable and compelling information of anything untoward. In relation to this point Council notes that you did not particularise the nature of the complaints alleged against Mr Swanepoel nor did you supply Council with any informative independent material to substantiate your claims.

Your email of 26 August 2021

I am aware that you are not subject to the LGOIMA. As you have already been advised, the LGOIMA points out that it is the requester’s responsibility to be as specific and clear as they can be in identifying what information they are asking for. Given the significant lack of detail in your request of 24 August 2021 and that Council did not have information about matters raised - Council could not be certain your request was properly being managed. In both the request and your response of 26 August 2021 – there are serious incorrect assumptions. Council asked questions of you to try to fill in the gaps and clarify what exactly you were referring to so that it could appropriately respond.

Council did not have material information to hand regarding your claims of Police investigations and criminal charges etc and you did not make this available. Council therefore sought a copy of the charging order from you so as to gain details of the alleged criminal offending that supposedly constituted the ‘serious misconduct’ which appeared to form the basis of your information request. You said the NZ Police were undertaking investigations and were going to lay charges - therefore we asked for particulars of that - or whether the charge to which you referred was laid by you as a private prosecutor - and the nature of it. As noted above, understanding the type and veracity of the complaint is critical to Council forming a response.

False assumptions

While you state “Luckily for you, I do have documents to prove it” (that Mr Swanepoel was facing a criminal charge) at the time of your request Council had no knowledge of the charge you had laid given that Mr Swanepoel had not been served.
The Police were reportedly making independent criminal inquiries at your instigation and there is no reason to expect that Council would be privy to that.
You contended that I “already know that there has been an ongoing police investigation into Mr Swanepoel since September 2020 and around February 2021 the investigation was extended to include Inna Shibalova, Darren James and Nina Gobie after they launched an unprovoked attack on some innocent Chorus contractors installing fibre on Riverview Road. After that it was escalated to a senior investigating officer and there has been a request for involvement of the Serious Fraud Office. I understand that at least one council officer has already been interviewed by police in relation to this so you should already be well aware of the police investigation.” At the time you lodged your LGOIMA request I was not aware of an ‘ongoing police investigation, [… that] the investigation was extended […], [that] After that it was escalated to a senior investigating officer and there has been a request for involvement of the Serious Fraud Office, [or that] at least one council officer has already been interviewed by police in relation to this so you should already be well aware of the police investigation. There is no reason why I should be “well aware of the police investigation" or of any involvement of the SFO etc. If any such inquiries were made they would presumably be conducted in confidentiality.
Your accusation that I was “trying to blackmail [you] for information [you] hold in exchange for [me] supplying documents which [I am] legally obliged to supply anyway is also misguided and unfounded. So is the allegation that I am trying to ‘barter’ for information. Aside from endeavouring to assist you with your information request and figuring out what you are talking about in this respect – I have no interest in the matter. The crux of the matter is that in Council’s view you failed to provide it with insufficient particulars in support of your request and wrongly assumed that Council was in a position to respond properly and fully.
It is plainly not part of my role in responding to your LGOIMA request – to make an official information request to the Kaikohe District Court or the Police as you have suggested.
Neither is it part of my role, nor would it be appropriate to ask Mr Swanepoel to substantiate your claims and provide me with information regarding what is ‘your request’ and which should have been specified with ‘due particularity’ when you submitted it.
Your statement that Mr Swanepoel “should have received a summons to appear before the court some time ago and the summons will presumably contain the same information on the charge sheet” is another false premise. Please refer above - at the time of your request Mr Swanepoel had received no information from the Court concerning any charge sheet or summons.
You have noted that Mr Swanepoel is being prosecuted as an individual – that is not as a Council employee in relation to the performing of his employment duties in his role as Council’s In-House Counsel. You state “Council is not a party to the proceedings” so in addition, I do not know why you believe Council should be aware of who you have been approaching, and the stage of the respective enquiries you are making with various agencies.

In conclusion, in making your request for information the responsibility was yours to ensure that Council was reasonably able to identify what you were seeking and in this instance in Council’s opinion this fell well short. You stated that you have documents yet you failed to supply any substantiating information on which Council could conduct a reasonable enquiry into your request.

Yours sincerely

Erica Cooney

Erica Cooney

Solicitor

Corporate Services, Far North District Council | 24-hour Contact Centre 0800 920 029

DDI +6494015306 | Erica.Cooney@fndc.govt.nz