Chapter 8: The public interest test

Options for statutory amendment

Given the wide range of circumstances in which the question may arise, it is clear to us that, despite its open-ended nature, the test of “public interest” is appropriate in this context and we would not wish to substitute a test with another name which may well have a narrower ambit. The current terminology is well-known and flexible enough to meet circumstances as they arise.

Defining “public interest”

We have considered whether “public interest” should be defined in the Act, but we doubt whether it is possible to frame a simple workable statutory definition. In all the references to the concept in statute in New Zealand, we have been unable to find any place where it is defined. Even when cases reach the courts, judges have been notably reluctant to attempt a definition, other than to say it means more than public curiosity, but rather conveys that the matter is one in which the public have a legitimate concern. One judge has simply described it as “a yardstick of indeterminate length.”259

One submission offered a definition in the following terms: “A matter capable of affecting the people at large so that they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.” We think this is too narrow, in that it suggests that the public at large will learn of the information, whereas some requests for official information are made by one person who may not intend to publish it more widely. It also suggests that the people “at large” must be capable of being “affected”. It does not recognise that private interests can serve and reflect wider public interests.

In the end we think it is not desirable to constrain decision makers by propounding a statutory definition.

Statutory list of factors

If one is to deal with the matter by way of amendment to the Act, a more promising approach might be to list a number of factors which are to be considered by agencies when applying the test. This approach has commended itself to the framers of the Queensland Right to Information Act 2009. That Act prescribes 19 factors that favour disclosure and 22 that favour non-disclosure. Those that favour disclosure include where:260

·Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability;

·Disclosure of the information could reasonably be expected to ensure effective oversight of expenditure of public funds;

·Disclosure of the information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.

Despite the attractions of this approach, we are nevertheless not persuaded that it is the best path, for at least the following reasons:

(a)Even if the statutory provision specified that the list of factors was not meant to be exclusive, there would almost inevitably be a tendency for factors not in the list to have more difficulty gaining acceptance. There might also be a tendency to rule out factors which were not clearly analogous to ones which were listed.

(b)“Public interest” is a flexible concept which should move with the times and there is a risk that statutory enumerations might freeze the list in time.

(c)Some of the factors listed in the Queensland formulation are so open-ended as to provide less than clear guidance: the first of those cited above is an example.

(d)There might be a danger that such a list would detract from the case-by-case approach by creating a likelihood that once one of the factors was made out that would be decisive in favour of publication: the necessary balancing process might thus be prejudiced.

(e)The statutory specification of factors might also increase the likelihood of challenge by judicial review.

Of 47 submissions to the issues paper on this point, 45 agreed with this view and opposed a legislative list. The main concern was that, even if the list was expressly declared not to be exhaustive, “giving it the force of law would invariably create that impression”.

We doubt whether there is any way in which the Act could supply a clearer indication of what “public interest” is. We ourselves have not found a solution which is at the same time clear and succinct. As we shall explain later in this chapter, we think improved guidance offers a better way forward.

The need to apply the test

In its submission to the issues paper, Fairfax Media made the point that the vital concern is the need for agencies to apply the test, however it is defined. We agree. We are concerned at the number of assertions in submissions that it is often not applied at all, or is accorded only lip service. We have therefore turned our minds to whether any statutory reformulation might make the requirement to consider the public interest override clearer than it is now. The reference to public interest in the current section 9 is not prominent. Section 9(1) reads:

Other reasons for withholding official information

(1) Where this section applies, good reason for withholding official information exists, for the purpose of section 5, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

We have considered ways in which the requirement to consider the public interest might be brought to light more clearly.

Redrafting the provision

In our issues paper we suggested placing the public interest requirement in a separate section of the Act with its own section heading. Appropriate words could be added to section 9(1) to cross-refer to the new provision. That new provision might read as follows:

Public interest in disclosure may outweigh grounds for withholding

Despite the fact that a good reason for withholding official information exists under section 9, the information will be made available if other considerations render it desirable in the public interest that it be so made available.

While supportive of the idea of presenting public interest in a separate provision, the Ombudsmen had some reservations about this approach, based on their concern that a good reason for withholding cannot be made out before considering the public interest, but only after weighing it in the balance.

It may, therefore, be that a better way of achieving the end would be to retain the public interest requirement in section 9 (or its equivalent), in a form such as the following:

Non-conclusive reasons for withholding official information

(1) Good reason for withholding official information exists where both (a) and (b) are met:

(a) Subsection (2) applies; and

(b) The withholding of the information is not outweighed by other considerations which render it desirable, in the public interest, to make that information available.

(2) This subsection applies if the withholding of the information is necessary to:

[there follow the section 9 withholding grounds]

This formulation has two advantages. The first is that the new section heading makes it clear immediately that the reasons listed are different from those in section 6 in that they are non-conclusive. Even if nothing else is done we think this change would be worthwhile. The second advantage is that the drafting, by separating out paragraphs (a) and (b), makes it clear that there are two steps to the process.

We thus recommend this formulation for redrafting a new section 9. We think it will make matters clearer, but nevertheless acknowledge that to achieve the attitudinal change that is required it will need to be supplemented by strong guidance.

Express confirmation

We asked in the issues paper whether it would be possible to insert a statutory provision to the effect that, when informing requesters of a negative decision based on a section 9 withholding ground, an agency should be required to expressly confirm that it has considered the public interest.

We ourselves indicated reservations about how well this would work. Submissions were split on the suggestion: there was not strong support for it. Those who disagreed said that it would effectively amount to a “box-ticking” exercise which would not change behaviour. Going further and providing reasons to the requester of why the public interest was not seen as sufficient to outweigh withholding received even less support. It was seen as being too bureaucratic and adding to compliance costs; it might also risk disclosing the information which has been withheld. We do not pursue this suggestion.

Guidance

Rather than a statutory definition of public interest, or a statutory enumeration of factors to be taken into account in applying it, and in addition to redrafting the statutory provisions in the way we have suggested, we think, once again, that guidance holds the most promise.

We are in agreement with the comments of Ms Megan Carter in her submission to the Queensland review, which led to the enactment of their 2009 Act. Referring to a book she had written on the subject, she said:261

My co-author and I found that best practice from English-speaking Westminster-style jurisdictions is that the phrase “public interest” is not further defined …

I think it is too difficult and overly prescriptive to try and capture the range and nuances of public interest arguments in a legislative form, but this is more achievable in the form of guidelines with examples.

The Ombudsmen’s Guidelines could be supplemented, we think, by examples from real cases of the kinds of consideration which have led to findings of sufficient, or insufficient, public interest to outweigh withholding grounds. Analysis of the cases of the Ombudsmen should bring to light enough examples to give a much clearer picture to agencies. Factors might include such matters as the amount of public money at stake; the source of any money involved; the seniority of any officials or executives concerned; the degree of political involvement; and many other matters. Such factors would not be conclusive, but concrete examples in the Guidelines will give substance to the otherwise abstract terms of the legislation. The building up of a bank of such examples will give useful guidance to agencies. They will be more flexible than statutory prescription. They will enable movement over time, and an acknowledgement that each case would still ultimately depend on its own facts.

As Megan Carter indicated in the submission referred to above, a consequence of the existence of such Guidelines would be to remind decision-makers (the Ombudsmen in our case) of the need to be as specific as possible about the public interests involved in each case when giving reasons for a decision, so that the cases will be as useful as possible.

We believe that the system of extra-statutory guidance drawing on real examples from cases of the Ombudsmen is just as appropriate for the “public interest” test as it is for the withholding grounds themselves.262 There was strong support in submissions for such a solution. Comments included:

More specific guidance from Ombudsmen re relevant public interest considerations [would be useful].

I agree that better guidelines and better recording and reporting of Ombudsmen’s opinions would help clarify the meaning of the public interest.

We support any guidance or case studies that would help in interpreting the phrase, and, in particular, instances of when the public interest would outweigh one of the withholding grounds.

We propose in chapter 13 that there be an office to assume oversight of the OIA with one of its functions being to monitor its operation. If that office were to find that there remain significant problems with the application of the public interest override, it could invest resources into delivering further education on the subject.

R32The requirement to consider the public interest in making information available should continue to be a feature of the OIA and LGOIMA. This should be made more prominent by redrafting section 9 of the OIA and section 7 of the LGOIMA along the following lines:

Non-conclusive reasons for withholding official information

(1)Good reason for withholding official information exists where both (a) and (b) are met:

(a)Subsection (2) applies; and

(b)The withholding of the information is not outweighed by other considerations which render it desirable, in the public interest, to make that information available.

R33The term “public interest” should not be statutorily defined or limited by a list of factors to be taken into account. Instead, the Ombudsmen’s Guidelines should provide clear examples of previous cases in which the public interest in disclosure has, and has not, been sufficient to justify overriding a withholding ground.

R34The oversight office should monitor how agencies are considering the public interest as part of the decision to withhold or release requested information under section 9 of the OIA or section 7 of the LGOIMA.

Attorney-General v Car Haulaways (NZ) Ltd [1974] 2 NZLR 331 (Haslam J) at 335.

Right to Information Act 2009 (Qld), schedule 4. In addition there are four factors which are irrelevant to disclosure, and 10 categories favouring nondisclosure. See also Freedom of Information Act 1982 (Cth), s 11B (added in 2010).

FOI Independent Review Panel The Right to Information: Reviewing Queensland’s Freedom of Information Act (Brisbane, June 2008). Ms Carter’s submission is quoted at 144.

See chapter 2 of this report.