The guidance provided by the High Court to assist Trade Minister Tim Groser in reconsidering his decision to refuse a request under the Official Information Act (OIA) will be of interest to others covered by, and relying on, the OIA.
We look at the advice offered by the Court.
The judicial review was sought by Professor Jane Kelsey and seven organisations with reservations about the Trans-Pacific Partnership (TPP) - Consumer New Zealand, Ngāti Kahungunu, OXFAM New Zealand, Greenpeace, the Association of Medical Specialists, the New Zealand Nurses Association and the New Zealand Tertiary Education Union.
At issue was Mr Groser’s blanket refusal to release documents sought by Professor Kelsey relating to the TPP negotiations.
The Court has required the Minister to reconsider whether there is a lawful basis to withhold some of the information requested. The Court sought to help the Minister in reconsidering his decision “by explaining the Minister’s duties and the meaning of the relevant provisions of the Act”.
It was essential that the Act’s meaning and purpose was honoured as it played “a significant role in New Zealand’s constitutional and democratic arrangements”.
The Prime Minister has indicated that the Government is considering an appeal.
Blanket approach not good enough
The Court found that the Minister had erred in law when he rejected the request on a blanket basis rather than reviewing the documentation to see if anything could be released either wholly or in redacted form. The Minister had not considered it necessary to review the relevant information because he believed he knew the contents of the documents.
The obligation placed upon the Minister was to release information that could not be lawfully withheld. Although the request referred to documents, the OIA covers “information, not documents”. In order to meet that obligation, the Minister was required to assess each piece of information requested against the criteria in the Act for withholding official information before refusing the request.
Reasons for withholding must be given, not just the grounds
There is an onus on the information holder to establish good reason for withholding information. Further, the information holder must (if requested) give enough information so as to enable the applicant to understand the basis for the decision.
”[A] decision-maker does not discharge his or her statutory duty to provide an explanation of the “grounds” in support of his or her “reasons” for refusing a request by simply reciting the statutory criteria relied upon.”
Section 6 sets out the “conclusive” reasons under the OIA for withholding information. These include whether release would prejudice New Zealand’s international relations and the entrusting of information to the government and whether it would seriously damage the economy of New Zealand, including the entering into of overseas agreements.
The Court said “prejudice” in this context means to “impair”. This seems to us to be a relatively low threshold and one which, assuming the decision stands, will have implications for other OIA decision-makers. It is also likely to be applied in relation to other grounds for withholding information including under section 9.
Section 9 sets out the “other” reasons under which OIA requests may be declined, including where it is necessary to avoid prejudice to the substantial economic interests of New Zealand, and to disadvantaging negotiations.
The Court said that “necessary” in this context means “essential”, and “disadvantage” suggests a potentially less adverse outcome than one that is prejudicial. Any unfavourable outcome could be considered a disadvantage.
Before withholding information under s 9, a decision-maker must not only conclude that it falls within one of the categories listed, but must also “undertake a balancing exercise and decide whether the public interest in withholding…is outweighed by other considerations that support disclosure”.
The Court has clarified that, where the arguments are finely balanced and the decision-maker is in two minds, “then information should be released unless there is good reason for withholding it”.
Section 18 sets out the “administrative” grounds for withholding, including where the information will soon be publicly available and where releasing it will require “substantial collation or research”.
The Court found that the Minister was wrong in relying on the “substantial collation or research” ground without first considering whether to charge for the cost of supplying the information or for extending time and/or consulting Professor Kelsey to see whether the request could be modified.
Those dissatisfied with an OIA response must first refer it to the Ombudsman. No application for judicial review can be commenced unless the Ombudsman has declined to investigate or has determined the complaint.
The Ombudsman in this case issued a final report on 29 July 2015 upholding the Minister’s decision but has yet to determine two aspects of the request. The Court considered only those matters which the Ombudsman had determined.
This decision reinforces the discipline required to comply with the OIA, and comes at a time when the Government’s general approach to OIA requests is under increasing scrutiny. As the Court commented, even “genuine administrative challenges” do not limit the duty to comply with the procedural requirements of the OIA.
While the OIA is firmly embedded in the day-to-day business of government, the High Court’s decision provides an opportunity to revisit some of the practices and assumptions that may have built up over time.