Chapter 7: Other withholding grounds and reasons for refusal

In this chapter we consider miscellaneous matters relating to grounds for withholding and reasons for refusal. We also ask whether any further grounds or reasons should be added to the Acts.

The distinction between the section 6 and section 9 withholding grounds

The withholding grounds in section 6 of both the OIA and the LGOIMA are conclusive. They are not subject to overriding public interest. If one of these grounds can be made out the agency can decline to disclose the requested information without making further inquiry. The grounds in section 9 of the OIA,226 on the other hand, are subject to overriding public interest. If one of them is made out a further inquiry is necessary as to whether other considerations make it desirable in the public interest to make the information available.

Yet it is certainly not true to say that the conclusive grounds in section 6 remove the elements of judgment from decision-making. For instance, section 6(a) provides that good reason to withhold official information exists if the making available of that information would be likely “to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand”. It is not enough for the agency to show that the subject matter of a request relates to security, defence or international relations. It must also show that disclosure would be likely to prejudice those matters. That may include weighing up a range of factors. Would disclosure adversely affect New Zealand’s trade and foreign relations? Would disclosure detrimentally affect a foreign partner country? Would disclosure prejudice the future provision of information from another country? Would disclosure affect the future giving of advice by officials? Has the need for confidentiality lessened with time?

In some Ministries, such as Defence, a system of classification of documents is in place. But even classifications such as “confidential” or “restricted” do not remove the need for a case-by-case examination of the requested information. Sometimes documents can be released with the deletion of certain parts.

So the section 6 withholding grounds still require careful consideration of each request, and a decision on whether the criteria in the ground are made out. But, unlike the grounds in section 9, once a ground in section 6 has been made out there is no consideration of whether the public interest nevertheless requires release. There is no “public interest override”.

It is not always immediately apparent how the choice has been made to allocate grounds between section 6 and section 9. In some instances little more is involved than a question of degree. Thus, section 6(e) of the OIA makes it a conclusive ground for withholding, where disclosure would be likely:

to damage seriously the economy of New Zealand by disclosing prematurely, decisions to change or continue Government economic or financial policies relating to [6 specified matters including exchange rates, taxation, Government borrowing and the entry into overseas trade agreements].

On the other hand, section 9(2)(d) of that Act makes it a rebuttable ground, able to be overridden by the public interest, that withholding is necessary to:

… avoid prejudice to the substantial economic interests of New Zealand.

Although the distinction between serious damage to the economy and prejudice to the substantial economic interests of New Zealand is subtle, the provisions apply in different fact situations and different reasoning processes are required.

In the same vein, section 6(d) states it is a conclusive ground for withholding where disclosure would be likely:

… to endanger the safety of any person.

On the other hand, section 9(2)(c) provides a rebuttable ground for withholding information where doing so is necessary:

… to avoid prejudice to measures protecting the health or safety of members of the public.

While section 6(d) would appear to require the immediacy of danger to a particular person as opposed to prejudice to more general safety measures affecting the public, there may well be cases which could fit equally well under either head. The Ombudsmen’s Guidelines provide no guidance on sections 9(2)(c) and 6(d), suggesting that they have not received much, if any, independent scrutiny.

Examples such as these illustrate the different approaches which the Act can require to similar matters, and the resulting difficulties for officials. A small number of submitters to our issues paper could not see why any of the grounds in section 6 should be conclusive, and suggested that the public interest override should apply to both section 6 and section 9. We disagree. Some interests are so important that they should be absolute. The security or defence of New Zealand227 is clearly one. We believe “maintenance of the law”228 is another. The maintenance of the law and its processes, and the right to a fair trial, are of such public interest that it is difficult to see how prejudice to them could be justified in the public interest. In relation to fair trial, the New Zealand Court of Appeal has indeed said that that right “is as near an absolute right as any which can be envisaged”.229

Accepting, then, that some withholding grounds should be conclusive, we have wondered whether some items should be moved from one section to the other, or whether some of the grounds in section 9 might be omitted altogether because of their virtual non-use and overlap with items in section 6. However, we have decided that, nearly 30 years down the track, we should keep changes to sections 6 and 9 to a minimum, and that little would be gained by moving items between categories unless the need to do so has been clearly demonstrated. Provided that the more detailed guidance which we suggest elsewhere in this report is forthcoming, we think that, generally speaking, there is not a strong case for moving from the established position with which people are familiar. The great majority of submitters who answered this question agreed.

The relevant grounds in the LGOIMA can be found in section 7. References to section 9 of the OIA should also be read as references to section 7 of the LGOIMA, where applicable.

OIA, s 6(a).

OIA, s 6(c); LGOIMA, s 6(a).

R v Burns (Travis) [2002] 1 NZLR 387 (CA) at 404 [10].