Chapter 7: Other withholding grounds and reasons for refusal

amendments to withholding and refusal grounds

We now consider possible amendments to some of the statutory provisions, and ask whether any new withholding grounds are needed.

Withholding ground: maintenance of the law

The important but difficult withholding ground in section 6(c) of the OIA has already been briefly mentioned above. Section 6(c) provides that it is a conclusive reason for withholding information, where the making available of that information would be likely:

to prejudice the maintenance of the law, including the prevention, investigation and detection of offences and the right to a fair trial.

The question is exactly what is meant by “maintenance of the law”. The wording in paragraph (c) is boilerplate, and appears in many other Acts of Parliament. In our review of the Privacy Act 1993 we noted the difficulties it has caused in that context as well.230 The internal context of the provision, and its references to offences, suggests that its main focus is the criminal justice system. If so, its main purpose is to ensure that criminal conduct is properly investigated, dealt with and brought to justice. A number of agencies do use it in this way, for example Police and Customs, and also local authorities investigating matters which may lead to a prosecution.

The Customs service said:

We apply this ground to information relating to the investigation of an offence where informations have not yet been laid, where release would compromise an investigation and/or prosecution, where information has been received from an informant or where it would reveal investigative or profiling techniques.

It is also no doubt properly used to prevent the disclosure of information which might facilitate the commission of crime (about, for example, the manufacture of drugs or explosive devices) or information which reveals methods of investigation used by Police.

However, the ground is capable of extending beyond the confines of criminal proceedings to cover the court process in general. The last phrase of paragraph (c), concerning prejudice to the right to a fair trial, can apply in the civil context as much as the criminal.

The question is how far beyond the court process the maintenance of the law ground can extend. A number of agencies indicated that they use it to prevent prejudice to an inquiry or investigation which they are undertaking. The Education Review Office have used it in relation to reviews of schools which have been instigated in response to a complaint; the Commerce Commission in relation to investigations into a leniency application; and the Health and Disability Commissioner in relation to investigations of complaints against a health professional under the Health and Disability Commissioner Act 1994. We have doubts, which are shared by the Ombudsmen, about whether the “maintenance of the law” ground is appropriate in such cases. Its wording does not readily accommodate this use.

Yet we have sympathy for the view that there is a case for protection in these situations. So we asked in the issues paper whether there might be merit in having a separate withholding ground, to cover information supplied in the course of an inquiry or investigation, and where disclosure of that material might prejudice the inquiry or investigation. The great majority of submitters who answered this question agreed, with 33 in favour and 3 against.

It should be noted that some of the information sought in this situation is likely to be protected from disclosure under existing grounds. Section 9(2)(ba) covers information supplied in confidence, or which the supplier could have been compelled to provide, where release would prejudice the ongoing supply of information or otherwise damage the public interest (which would presumably include causing prejudice to the effective conduct of investigations and inquiries). Section 9(2)(g)(i) protects information the disclosure of which would prejudice the free and frank expression of opinions necessary for the effective conduct of public affairs (which would also presumably include the effective conduct of investigations and inquiries). But there is a strong feeling that more is needed. The Ombudsmen put it this way:

It seems to us that the additional interest agencies are concerned to protect is the ability of decision-makers to close the door at a particular point in time and deliberate in private on advice and other pertinent material received.

This was put in different ways in different submissions. Thus, the Health and Disability Commissioner said:

As HDC investigations are inquisitorial in nature, it is vitally important that we have the opportunity to obtain untainted factual responses from the parties involved. Responses by the provider to questions asked by HDC assist me to decide what the next step should be in the investigation process and ultimately provide the evidence for my opinion on whether a breach of the code has occurred. Disclosure of information obtained as part of an investigation at an early stage may result in a provider tailoring their response accordingly rather than being free and frank … Releasing responses from other providers under investigation or the expert advice on the standard of care raises a distinct possibility that the evidence subsequently obtained from that provider will be tainted.

The Department of Building and Housing said:

We think it would be useful for a new withholding ground to be created for information supplied in the course of an investigation, and where that investigation is still ongoing. While the current provisions of the Act can be applied in this way, this is not made clear in the way the Act is drafted. It is important to be able to carry out statutory functions such as investigations without compromising the process through inappropriate sharing of information, and there is merit in the Act explicitly recognising this importance.

The Inland Revenue Department said:

While any person who is the subject of an investigation may well have rights to obtain information about an ongoing investigation we do not agree that the public should have equal rights or that the public would be best served by providing partial information about an ongoing investigation. Surely this can only lead to supposition and uninformed comment about a matter where no decision has yet been reached. Investigations are often difficult and fraught for those involved [;] it would be extremely unfortunate and counter to natural justice for uninvolved parties to be given information about an investigation where no decision had been reached.

Two media organisations agreed. The Media Freedom Committee said, in response to the question of whether they would agree with such a new withholding ground:

Reluctantly. Editors who have had to undertake their own in-house inquiries understand that in some circumstances, it is unhelpful to a fair result to have information that is only partially complete made public.

To put it another way, the rationale for such a ground is to protect orderly decision-making. We noted in the issues paper that a similar rationale lies behind a number of exemptions already provided for elsewhere in the OIA. Material provided to a court, tribunals in their judicial function, commissions of inquiry and the Judicial Conduct Commissioner is outside the scope of the OIA.231 Information contained in correspondence in the course of an investigation conducted by the Ombudsmen or Privacy Commissioner is similarly beyond the reach of the Act.232

Other agencies are able to use secrecy provisions in their own legislation to the same end: the IRD is the most well-known example. But most agencies do not have such provisions available to them, even though inquiries and investigations conducted by them would benefit from analogous protection.

We conclude, then, that the OIA and LGOIMA should be amended to confer such protection. The question is how best to do that. Some thought that section 6(c) could be amended to make it clear that it extends beyond the criminal law and the court system to cases like the ones we are now considering. We are reluctant to do that. Section 6(c) is a conclusive ground, not subject to a public interest override. It protects the criminal justice system and the integrity of the courts, and should admit of no exception. There is little justification for going that far in relation to the proposed new ground. We believe it should be subject to the public interest override.

The Ombudsmen thought it might be possible to extend section 9(2)(f)(iv) which protects the confidentiality of advice tendered by Ministers and officials beyond executive decision-making. However, given the current degree of uncertainty, we think that a specific new withholding ground is warranted.

We conclude that the best way is to add a new withholding ground to section 9 of the OIA and section 7 of the LGOIMA. In the issues paper we proposed a ground in the following terms:

If the withholding of the information is necessary to protect information which has been provided to a department or organisation in the course of an investigation or inquiry and disclosure is likely to prejudice the conduct or outcome of that investigation or inquiry.

We continue to support such a ground. However the formula will need to be refined and expanded when the Bill is drafted. First, the term “investigation or inquiry” needs to be clearly circumscribed to make it clear that it refers only to investigations and inquiries authorised by or under statute. Otherwise it could open the door to informal investigations about any matters.

Secondly, the withholding ground should only apply during the course of the investigation or inquiry, and not after its determination. When it is over, the information may be protected by some other ground – one of the commercial or confidentiality grounds for instance – but not the new ground that we are recommending.

Thirdly, the ground, as drafted in the issues paper, applies only to information provided to the agency in question. That should be expanded to include information generated by, or obtained in any way by, the agency in question. The interest to be protected by orderly decision-making extends to any information or advice necessary for the process of decision-making.

Fourthly, it would be desirable to make it clear that the new withholding ground is not to restrict, or adversely affect, the existing “maintenance of the law” ground in section 6(c).

We received one submission to the effect that the new withholding ground should extend beyond inquiries or investigations, to cover any information acquired by a body exercising a supervisory or oversight role in relation to another organisation: for example, the role of the Financial Markets Authority in relation to financial organisations, or of the Crown Ownership Monitoring Unit of Treasury in relation to State Owned Enterprises. But the rationale of that suggested extension is different from the rationale of our proposed withholding ground, which is to facilitate orderly decision-making. We think the commercial and confidentiality withholding grounds adequately cover the situation of supervision and oversight.

R24A new withholding ground should be added to section 9 of the OIA and section 7 of the LGOIMA, stating that good reason for withholding information exists where it is necessary to protect information which has been provided to an agency in the course of an investigation or inquiry, and disclosure is likely to prejudice the conduct or outcome of that investigation or inquiry. The new withholding ground should expressly provide that:

(a)it covers only investigations or inquiries authorised by or under statute;

(b)it applies only during the course of an investigation or inquiry, and not once it has been determined;

(c)it covers information supplied to, generated or obtained by the agency in the course of an investigation or inquiry;

(d)it does not restrict or otherwise affect the existing “maintenance of the law” withholding ground.

 

Existing maintenance of the law withholding ground

If a ground such as the one we have recommended is added, we do not think there is any need to amend the wording of the existing “maintenance of the law” withholding ground. In some other jurisdictions similar provisions are defined rather more fully. For example the one in British Columbia exempts information from disclosure where (among other things) such disclosure could reasonably be expected to:233

·harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement;

·reveal the identity of a confidential source of law enforcement information;

·reveal any information relating to or used in the exercise of prosecutorial discretion;

·deprive a person of the right to a fair trial or impartial adjudication;

·reveal a record that has been confiscated by a peace officer in accordance with an enactment; or

·facilitate the escape from custody of a person who is under lawful detention.

We do not think we need to go so far. The main problem with the New Zealand “maintenance of the law” ground at the moment is its dubious use to deal with investigations and inquiries. If a new and more appropriate ground is found for that situation, as we propose, we think the present wording can stay as it is. But in that case clear guidance will be needed as to its scope.

In our review of the Privacy Act we have raised a similar question in relation to the “maintenance of the law” provisions in that Act. We concluded in our Privacy Act report that redrafting was not the answer. We supported, however, a call for more detailed guidance on the operation of the phrase.234  Given the level of uncertainty, we think that more guidance would be helpful in relation to the OIA as well. The Ombudsmen’s Guidelines on section 6(c) of the OIA could usefully be expanded to explain in more detail, and with examples, the proper use of the “maintenance of the law” ground. We recommend accordingly.

R25The Ombudsmen’s Guidelines should address in detail, and with examples, the proper use of the “maintenance of the law” withholding ground.

Reason for refusal: soon to be publicly available

Section 18 lists a number of reasons for which requests for information may be refused.235 The first is simply that a good ground for withholding has been established under sections 6, 7 or 9. With the exception of section 18(c)236 which relates to the requirements of other laws, the other reasons in section 18 may be characterised as “administrative reasons”. This is what the Ombudsmen call them in their Guidelines.237

One of these other reasons merits discussion here because submissions on the issues paper revealed some dissatisfaction with how it works. Paragraph (d) provides that it is a reason for refusal that:

… the information requested is or will soon be publicly available.

This paragraph deals with two different situations: the first where the information is already publicly available; the second where the information will soon be publicly available.

Where the information is publicly available the agency which has been asked for it does not need to provide it: the requester can find it at the public source. The phrase “publicly available” is not defined. Often there will be no doubt about it: if the information is freely available on a website, for example. But other situations may not be so clear. What, for instance (as in one case we were told about), if the information had appeared in a magazine some months ago, and the magazine is not archived online? The information was once publicly available, but is it now? What, again, of information which is contained in a book of which there are only two copies in New Zealand, both in libraries in towns distant from the requester? Interloan may solve the problem sometimes, but not always.

It seems to us that the statutory provision could benefit from definition and amendment. It should be made clear that the reason for refusal relates to information which is both publicly available and reasonably accessible to a member of the public wishing to find it.238 Material published on a website would always satisfy that test; a person without internet access can seek assistance from others to find it. We take it for granted that any agency declining to supply information on this ground would tell the requester the public source where it can be found: we doubt whether there is any need to include an express obligation to that effect in the Act.

However, reliance on this refusal ground should not be limited only to situations where the information is freely available from elsewhere. The information may only be publicly available to someone who pays to obtain the information, for example by subscription. Defining the term “publicly available” would therefore be helpful in confirming that may include information even if its availability is subject to payment of a fee.239

The second situation is where the information will soon be publicly available. There was evidence in responses to our survey and submissions on the issues paper that requesters feel this provision is sometimes misused. It is sometimes used to decline to supply draft documents when one of the good government grounds would be more appropriate. Moreover a number of respondents and submitters thought the elasticity of the word “soon” allows too much scope for manipulation, and that the provision is sometimes used in apparent justification for a long delay in publishing the information.

 

The following are among the comments we received:

(a)At times OIA requests are declined on the grounds that the information will soon be publicly available. But Ministry or Department spokespeople cannot say when that might be and in practice it is proved to be several months afterwards.

(b)The ground relating to timing ie. some kind of announcement is about to be made, is also misused to delay and disrupt information seeking with no tangible requirement on how soon such an announcement must be made.

(c)It would be very helpful to the mainstream media if this ground were to be narrowly defined.

(d)An example … would be where a government agency intends to release a report after an election or by-election, but the information in that report could have a bearing on decisions made by the public at the ballot box.

The majority of submissions endorsed amending the provision, but there was little agreement on what the change should be. Our original suggestion of “within a very short time” received some support, but others said it was just as subjective as “soon”, and would not be much of an improvement. “Imminent” was also proposed, but probably conveys an unrealistic urgency. Other submitters proposed fixed times, but they ranged from seven days to 90 days. Moreover a fixed time tends to become the default period. Nor does a fixed time take account of the different contexts in which the question may arise.

This ground for refusal can be legitimately used in a number of contexts. The Ombudsmen give some in their Guidelines:240

This can encompass situations such as when the information is contained in the text of a speech that is about to be delivered or it is in a report which is being printed and there are difficulties in providing it immediately. It would be administratively impractical for an agency to be expected to provide a copy of the information in these circumstances.

Other examples we were given included where a document is to be released after a meeting of the relevant agency (say a local authority) in which case the meeting cycle is determinative; where a report is to be tabled in Parliament at a future time; where an article or book is to be published, and the agency does not wish to pre-empt the publisher’s right to release it; where the agency is preparing a managed release to the media and does not wish one person to have an advantage over anyone else; and where, as one submission puts it, “a report has been worked up for months or even years and is weeks away from publication” and “it is unnecessarily burdensome to have to make the report available because some people want a sneak peek or want a scoop”.

We therefore prefer a formulation which, rather than fixing arbitrary time limits, emphasises the reasons for the delay. We recommend:

The information requested … will soon be publicly available, and to require its release before that time is unnecessary, or would be unreasonable in the circumstances.

There is some elasticity in this formulation, of course, but we think it is less open to abuse than the present. Before an agency can use this ground it would need to know what information is to be released, and should have a clear timeframe for when it will be released. Guidance should make that clear.

R26Section 18(d) of the OIA and section 17(d) of the LGOIMA should be amended to state that a request may be refused where the information requested is either:

(a)publicly available and reasonably accessible to a member of the public; or

(b)will soon be publicly available, and to require its release before that time is unnecessary, or would be unreasonable in the circumstances.

R27The OIA and LGOIMA should define the term “publicly available” and should confirm that it may include information that is available on payment of a fee.

Withholding ground: legal professional privilege

Section 9(2)(h) provides that good reason for withholding exists if the withholding of the information is necessary to:241

(h) maintain legal professional privilege.

A few submitters expressed concerns about this.242 One said that the ground as expressed could be interpreted to mean that legal professional privilege lasts indefinitely, whereas in the case of the Government, as opposed to a private citizen, it is “needed only to prevent the disclosure of legal advice for a short window where disclosure of the advice would be adverse for the Crown in litigation or to protect its position”. This is a valid point. Unlike many of the other grounds in section 9, legal professional privilege is protected as a concept, however important or unimportant the matter on which the advice was given, or, apparently, however long ago it was given.

That is not very satisfactory. Historians (and others) are properly interested in the reasons for government action, and sometimes legal advice is an important part of those reasons. We have considered whether the provision might be redrafted to allow greater access, but have decided against this course of action for two reasons.

First, if a matter of real public importance is contained in the advice, the public interest override should suffice to ensure that disclosure will be made. Secondly, the matter may be better dealt with under the Public Records Act 2005. That Act requires material to be placed in Archives after 25 years. Access may be restricted “for good reasons”, “having regard to any relevant standard or advice issued by the Chief Archivist”. The advice of the Chief Archivist provides that legal professional privilege is a legitimate ground for restricting access. However the advice further states, in relation to all grounds, that “restrictions should always be for a finite period”. Currently an appropriate period is being negotiated with the Crown Law Office. The Law Commission hopes that the proper interests of historians and other researchers will be met in fixing the time.

The Ombudsmen made two different points. First, they noted that the Evidence Act 2006 codifies legal professional privilege. But section 53(5) of the Evidence Act provides that that Act does not affect the general law governing legal professional privilege outside the context of court proceedings. This means that as far as the OIA is concerned it is the common law that applies. The Ombudsmen note that this could be problematic in judicial review proceedings: which standard would apply? They also say:

Questions are also likely to arise as to what are the differences, if any, between LPP at common law and LPP under the Evidence Act. It is likely that most jurisprudence in the future will be generated under the Act without adverting to any difference at common law.

Other jurisdictions, for instance Victoria,243 have adopted provisions which align the definitions of legal professional privilege for court proceedings and the freedom of information principles. We recommend that that happen in New Zealand, and that the OIA expressly provide that legal professional privilege for the purposes of that Act means legal professional privilege as provided in the Evidence Act.244

The other point raised by the Ombudsmen is that in the withholding ground under Part 2 of the OIA it must be necessary to maintain legal professional privilege; whereas under Part 4 (relating to access to information by a body corporate) the equivalent withholding ground refers to a breach of legal professional privilege. Those two grounds should be aligned, and we recommend that Part 2 be made consistent with Part 4. That would also maintain consistency with the equivalent provisions of the Privacy Act 1993.245

R28The OIA and LGOIMA should state that legal professional privilege for the purpose of those Acts means legal professional privilege as defined in the Evidence Act 2006.

R29As a drafting matter, the legal professional privilege withholding ground in section 9(2)(h) of the OIA and section 7(2)(g) of the LGOIMA should be amended for consistency with section 27(1)(g) of the OIA and section 26(1)(g) of the LGOIMA, so that an agency may withhold requested official information if “withholding the information is necessary to avoid a breach of legal professional privilege”.

Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC R123, 2011) at ch 9.

OIA, s 2(1) definition of “official information” paras (h) and (l); and OIA, s 2(6).

OIA, s 2(1) definition of “official information” paras (i) and (j).

Freedom of Information and Protection of Privacy Act [NSBC 1996], cl 65 315.

Law Commission, above n 230, at R94–R96.

LGOIMA, s 17.

LGOIMA, s 17(c).

Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) at Part B, ch 2.

Compare the Criminal Disclosure Act 2008, s 16(1)(l).

See, for example the definition of “publicly available information” in the Privacy Act 1993, s 2, as “information that is contained in a publicly available publication.” “Publicly available publication” is then defined as “a magazine, book, newspaper, or other publication that is or will be generally available to members of the public”. The Law Commission has recommended that this latter definition be updated so that it also includes information available from a website, and clarification that it can include a publication that is available on payment of a fee: above n 230, at R8.

Office of the Ombudsmen, above n 237, at Part B, ch 2.2.

LGOIMA, s 7(2)(g).

See also Steven Price Official Information Act 1982: A Window on Government or Curtains Drawn? (NZ Centre for Public Law, 2005) at 46–47.

Freedom of Information Act 1982 (Vic), s 32(1).

See for example Search and Surveillance Act 2012, s 136(1).

Section 29(1)(f).