Request for information held by ENZA Fresh Ltd—relationship between ENZA and New Zealand Apple and Pear Marketing Board—information not subject to OIA
A company asked the New Zealand Apple and Pear Marketing Board for information which was not held by the Board but by ENZA Fresh Ltd (ENZA). ENZA is an incorporated company which is not named in Part 2 of Schedule 1 of the Ombudsmen Act 1975 or in Schedule 1 of the OIA. Accordingly, the OIA does not apply to information held by ENZA.
In terms of section 2(4) of the OIA, it was necessary to consider whether the information could be said to be held by ‘an officer or employee or member’ of the Board in his or her capacity as such. In this respect it was noted that two Directors and the Chief Executive of the Board were also directors of ENZA. However, information held by directors of ENZA in their capacity as directors cannot be considered to be held by the Board simply because the directors may also be officers or employees or members of the Board. Only if the rules governing appointment of directors of ENZA stipulate that as a prerequisite for appointment such directors must be officers or employees or members of the parent Board would information held by the directors of ENZA be deemed to be held by the Board. Accordingly, it was necessary to examine the articles of association of ENZA relating to the appointment of directors. They contained no stipulation that ENZA directors have to be officers, employees or members of the New Zealand Apple and Pear Marketing Board.
The information which had been requested was not subject to the OIA.
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.