Requests for information generated by Office of the Ombudsman—requests declined—information generated in course of monitoring Department of Corrections investigation into a death in custody pursuant to Protocol between Department and Office—information covered by OIA—information relevant to Coroner’s inquest—Coroner sought to embargo release—consideration of powers of Coroner to embargo release—information released to mother and her representative subject to conditions—Coroners Act 1988, ss 29 and 35
Following the death in prison of a seventeen year-old youth, requests were made by his mother and a journalist for a copy of a report made by the Chief Ombudsman into the matter. The Department declined to make the information available.
The information at issue was a document prepared, following the death in custody of the young man, by an investigating officer in the Ombudsman’s office with special responsibility for penal institutions. In terms of a Protocol between the Department of Corrections and the Office of the Ombudsman, the Department is required to notify the Office immediately when an inmate dies. However, the principal responsibility for the investigation of such a death rests with the Department. The role of the Office of the Ombudsman is to monitor that investigation. However, it is open to an Ombudsman to initiate an own motion investigation into the circumstances of the death if the relevant Ombudsman considers such a course is warranted.
The monitoring role is undertaken by an Investigating Officer with special responsibility for penal institutions. That officer keeps the relevant Ombudsman informed about the progress of the Department’s investigation and any issues of concern as they emerge. The officer provides the Ombudsman with a written record of the outcome of the monitoring role and the Ombudsman generally makes that information available to the Department for consideration.
The first point for consideration was whether the information under request was official information. ‘Official information’ as defined in section 2(1) of the OIA:
Does not include information contained in any correspondence or communication which has taken place between the office of the Ombudsmen and any Department or Minister of the Crown or organisation and which relates to an investigation conducted by an Ombudsman under this Act or under the Ombudsmen Act 1975, other than information that came into existence before the commencement of that investigation.
However, as the information did not relate to ‘an investigation conducted by an Ombudsman … under the Ombudsmen Act 1975’, but to the record of the monitoring role carried out pursuant to the Protocol between the Department and the Office of the Ombudsman, it did not fall within the exclusion identified above. The requests therefore had to be considered in terms of the OIA.
In declining the journalist’s request, the Department had referred to section 29 of the Coroners Act 1988. This section relates to the publication of details of self-inflicted deaths. Accordingly, it did not prevent the information being made available to requesters, but it did have a bearing on what the requesters might then do with the information. The Department consulted the Coroner about the requests, and he directed the information at issue be embargoed until the date of the inquest on the grounds that ‘the good order of the conduct of the inquest requires this’. In giving his direction, the Coroner relied on section 35 of the Coroners Act. However, section 35 did not appear to give a Coroner the power to embargo information from being released under the OIA.
As the Department had advanced no other reasons for withholding the information, subject to any further submissions the Department might wish to make, there appeared to be no good reason for withholding the information.
The Department then sought an opinion from the Crown Law Office on the legal issues. In the light of that opinion, a copy of which was made available, the Department took the view that the information should be withheld in reliance upon section 6(c), and, insofar as the journalist’s request was concerned, section 9(2)(a). The Crown Law opinion confirmed that the Coroner did not have the power to direct an embargo of the Ombudsman’s report. However, in the light of the concerns expressed by the Coroner, it was suggested that the information could be withheld under section 6(c) on the basis that release of the information would be likely to prejudice the integrity of the inquest. Section 9(2)(a) was relied on in respect of the journalist’s request on the grounds that it was necessary to protect the privacy of a deceased natural person.
A considerable degree of urgency attached to the request made by the deceased’s mother because she wanted the information before the inquest into her son’s death. She wished to appear before the Coroner and make submissions. It was accepted that the Department had to give due weight to the Coroner’s concerns with respect to the conduct of the inquest. However, it seemed that these concerns could be met by releasing the information to the mother subject to a condition that she not release it for publication. Such a course would place the responsibility and control of release or otherwise of the information in the Department’s hands, as holder of the information. It was therefore suggested that the Department consult the Coroner about this proposal. The Coroner agreed with the proposed course of action and the information was released to the mother.
Insofar as the journalist’s request was concerned, had section 9(2)(a) not been raised as a reason for withholding the information, the information could have been released with the journalist’s attention being drawn to section 29 of the Coroners Act 1988. This section imposes certain prohibitions on the publication of details of the manner in which a self-inflicted death occurred. However, because section 9(2)(a) had been advanced as a ground for withholding the information from the journalist, it was necessary to consult the Privacy Commissioner. In the event, the inquest was held before consultation with the Privacy Commissioner could be completed and the journalist made a fresh request for the information in the light of the changed circumstances. The investigation of the original request was therefore discontinued.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.