Chapter 8: The public interest test

The concerns

Section 9 of the OIA (“other reasons for withholding official information”) lists 12 good reasons for withholding. Section 7 of the LGOIMA contains 11. Both sections provide that a good reason for withholding only applies where in the circumstances of the particular case the withholding of that information is not outweighed “by other considerations which render it desirable in the public interest to make that information available.” In other words, these withholding grounds are subject to a public interest override. This involves officials asking:

(a)Is the information such that a withholding ground exists?

(b)If so, is it overridden by the public interest in making that information available?

This kind of balancing approach is familiar enough to lawyers, as is the phrase “public interest” itself. In fact the phrase appears in over 1000 places in Acts of Parliament in this country.255  But it is not straightforward and we received many comments from agencies that they find the public interest test difficult to apply. One said it has had to seek legal advice on its application. Many said they needed help in applying it. They are not sure what “public interest” means nor what weight it should carry in particular circumstances.

Some were confused by the fact that “public interest” plays a part on several levels. First, the fundamental principle of the OIA, that information should be made available unless there is good reason for withholding it, is itself grounded in the public interest that government should be transparent and accountable. Secondly, some of the withholding grounds are also based on public interest – the security and defence of New Zealand, maintenance of the law and the health and safety of members of the public are very obvious examples. Thirdly, there is the public interest with which we are now concerned: the public interest in making available specific information even though it falls within one of the withholding grounds in section 9.

Yet this is not quite as complicated as it looks. In applying the Act, officials need only consider the “public interest” once. Once it has been established that one of the withholding reasons expressly set out in section 9 applies, the question is whether it is outweighed in the particular case by the public interest in disclosure. The test may be thus defined: “There is only good reason to withhold official information where one of the paragraphs in section 9(2) applies and the need to withhold is not outweighed by the public interest in disclosure.”

However it is clear that the two elements in the process, and the balancing exercise involving them, create difficulty for some agencies.

Some submitters said, somewhat more worryingly, that sometimes the public interest test is applied only in a token fashion, and that sometimes it is even ignored altogether. In other words, once a withholding ground is made out that is sometimes seen as effectively the end of the matter. Respondents to the survey, and submitters on the issues paper, put this to us in various ways.

Sometimes the second part of the test gets lost sight of in the necessary focus on the viability of potential withholding grounds.

I don’t usually consider the second stage if I consider there is a need to withhold.

With respect to the two stage test, I suspect that once the primary ground for withholding has been established, few agencies would release the information after applying the second stage of the test.

The test is entirely counter-intuitive as agencies are asked to reconsider after they have decided there are grounds to withhold, and it is unrealistic to expect they will do this rigorously.

In his survey of the OIA, Steven Price found that in almost three-quarters of cases he examined agencies did not explicitly balance public interest considerations, and “when they did they rarely paid more than lip service to it”.256

Current guidance

Some assistance in applying the public interest test can perhaps be derived from the purpose section of the OIA, which states that a purpose of the Act is to increase the availability of official information to the people of New Zealand in order:257

(i)to enable their more effective participation in the making and administration of laws and policies; and

(ii)to promote the accountability of Ministers of the Crown and officials,–

and thereby to enhance respect for the law and to promote the good government of New Zealand:

That gives some guidance as to the sorts of considerations which constitute the public interest in making information available. Nevertheless, as was pointed out in submissions, it would be a mistake to assume that these are the only elements of “public interest” to be considered when deciding whether the public interest in disclosure overrides a withholding ground in a particular case.

The Ombudsmen’s Guidelines also assist in applying section 9. They make it very clear that the process involves more than one element, and requires a balancing exercise. They prescribe that process as follows:258

(i)Identify whether one of the withholding grounds set out in section 9(2) applies to the information at issue.

(ii)Identify the considerations which render it desirable, in the public interest, for the information to be disclosed.

(iii)Assess the weight of these competing considerations and decide whether, in the particular circumstances of the case, the desirability of disclosing the information, in the public interest, outweighs the interest in withholding the information.

The Guidelines note that the phrase “public interest” is not restricted, and that in assessing it the content of the information, the context in which it was generated and the purpose of the request (if known) are all relevant. The Guidelines conclude:

There is no easy formula for deciding which interest will be stronger in any particular case. Rather, each case needs to be considered carefully on its own merits.

Despite this assistance, agencies obviously still struggle.

As revealed by a search of a New Zealand statutes website. At last count the number was 1106.

Steven Price The Official Information Act 1982: A Window on Government or Curtains Drawn? (New Zealand Centre for Public Law, Victoria University of Wellington, Wellington, 2005) at 50.

OIA, s 4(a); and (with appropriate variations) LGOIMA, s 4(a).

Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) at Part B, ch 5.