Chapter 11: Complaints and remedies

Enforcing the public duty to release information

If the Ombudsmen make a recommendation to release information and the OIA or LGOIMA veto is not exercised, then on the twenty-first day following the recommendation the agency comes under a public duty to comply with that recommendation. We think that the failure to comply with the duty is, as a rule, unjustifiable – unless the agency promptly commences judicial review proceedings in respect of the recommendation.534 But if it does not, and simply ignores the Ombudsmen’s recommendation, the OIA does not state how that that public duty may be enforced.

This situation is relatively rare, because in most cases the agency would seek to have the veto exercised, or failing that might apply for judicial review of the recommendation. Assuming neither of those avenues applied and there was still a public duty, the agency would be refusing to comply with it. Nonetheless, this kind of situation has in fact occurred on at least one occasion.535

If that happens, enforcing the public duty is problematic. The Attorney-General may bring relator proceedings to enforce the public duty on behalf of the individual seeking the information. In practice, such proceedings are carried out by the Solicitor-General through the Crown Law Office. We asked in our issues paper whether this is an appropriate role for the Solicitor-General and a majority of submitters thought it was (16 to 10). This was also the solution the Law Commission recommended in its 1997 review of the OIA.536

However, leaving enforcement up to the Solicitor-General raises the spectre of a possible conflict of interest. The Ombudsmen and the Crown Law Office pointed out that in such a case the Solicitor-General may be acting against a Crown agency. This is an uncomfortable position given its usual role as the Crown’s legal adviser and advocate in the courts. The Solicitor-General may previously have provided advice to the agency concerning the right to withhold the information, but now must act against it to enforce the public duty to release. This places him or her in an untenable position. Such being the case, the Attorney-General may refuse to give his or her approval to the relator proceedings, and the public duty will not be enforced.

If this happens it is not clear whether the aggrieved individual can bring proceedings on their own behalf, without the Solicitor-General acting as a party. The requester would have to argue that the failure to release the information was not just a breach of a public duty, but also amounted to an interference with his or her private right to have access to the information.

This is a somewhat murky area of the law which we believe should be clarified. Failure to comply with the public duty created by OIA and LGOIMA is as a rule unjustifiable. Where a public duty exists, the law should provide a clear path to enforce it. The agency’s failure to release the information, being in breach of a duty to do so, may seriously affect the requester by depriving them of a valid right or entitlement to access specified information. The legislation should make it clear that they are able to approach the court for a declaration of their rights on the issue. We note that relief might be limited by the common law rule that an injunction for mandamus (directing the agency to release the information) cannot be sought against the Crown or its servants, which would probably encompass many of the decision-makers under the OIA and LGOIMA.

We further recommend that a solicitor-client costs indemnity provision, similar to that which applies where a complainant wishes to challenge an Order in Council or local authority veto, could be used here to distribute the balance of power more evenly. If an agency breaches its public duty, the Crown would have to cover the cost of the complainant bringing court proceedings, as long as the proceedings were reasonably and properly brought. This means that an agency could, if it chose, maintain its stance and insist on withholding the information, but at a financial cost to the Crown. It would also be at a political cost to the agency, if the Ombudsmen chose to draw public attention to the breach of the duty by way of their reporting powers.

R83A new provision in the OIA and LGOIMA should state that, where an agency is under a public duty to release specified official or other information, the requester may bring court proceedings for such relief as is available on his or her own behalf.

R84A new provision in the OIA and LGOIMA should state that the requester’s costs of bringing such proceedings should be met by the Crown on a solicitor–client basis, unless the court is satisfied that the proceedings have not been reasonably or properly brought.

There have been two reported cases in which agencies have sought judicial review of an Ombudsman’s recommendation to release information: Commissioner of Police v Ombudsmen [1985] 1 NZLR 578 and Television New Zealand Limited v Ombudsmen [1992] 1 NZLR 106. See Law Commission, above n 491, at [367] – [368].

For example, a 1994 case concerned a failure by a school principal to release information requested by a group of parents. The Ombudsmen invited the Solicitor-General to enforce the public duty imposed on the principal by section 32 of the Act. The proceedings were eventually settled after the principal agreed to release the information: Office of the Ombudsmen Report of the Ombudsmen for the year ended 30 June 1995 AJHR A3 at 40. In 1995 the Ombudsmen also reported that three Crown Health Enterprises had ignored recommendations to release certain salary information. The Solicitor-General issued proceedings to enforce the public duty and all three CHEs later released the information.

Law Commission, above n 491, at [382].