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New case note: Refusal of request for information on vaccination certificates unreasonable

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The Chief Ombudsman has published a case note on an investigation about the COVID-19 Minister’s refusal to give the New Zealand Council of Civil Liberties information about vaccination certificates for domestic use.

The case related to the Minister’s effective use of section 18(d) of the Official Information Act – a provision which gives agencies a discretion to refuse a request for information that is or will soon be publicly available - to refuse the NZCCL’s request.

In October 2021, the NZCCL urgently requested information from both the Prime Minister and the Minister for COVID-19 Response about the vaccine certificates. It noted that there was ‘very strong public interest’ in the immediate release of this information. The NZCCL contacted the Prime Minister and the COVID-19 Response Minister a month later, noting the maximum statutory response time had expired and asked when it could expect a response.

The Ombudsman’s investigation found there were plans by the Minister’s office to release the information proactively by the end of January 2022, but the Minister did not consider it was reasonable to give the NZCCL request ‘additional priority’ over the work agencies were doing for the COVID-19 response.

The Ombudsman acknowledged that a plan to proactively release the information was in place but the fact remained that the NZCCL had made a genuine request in October 2021 for its request to be treated urgently to enable ‘effective participation in the making and administration of laws and policies’ and deferring release would inhibit this legitimate objective.

The Ombudsman also acknowledged the pressure that the agencies were working under, but that given the circumstances of the case, cumulative failings to meet the requirements of the OIA meant the refusal relying on section 18(d) was unreasonable.

The use of section 18(d) will likely come under the spotlight as part of the Ombudsman’s recently-announced investigation into concerns that government agencies are too slow in responding to requests for official information. 

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