Request for reference checks—section 26(1)(c) applied
An unsuccessful tenderer asked Bay of Plenty Regional Council for information about how its tender responses were evaluated. The Council released some information but withheld ‘evaluative material’ about the requester under Part 4 of the LGOIMA. The requester complained to the Ombudsman.
Part 4 of the LGOIMA deals with requests by corporate entities for personal information about themselves. Section 26(1)(c) provides a reason for refusing such requests if the disclosure of ‘evaluative material’ would breach an express or implied promise to the supplier that it would be held in confidence. Section 26(3) defines ‘evaluative material’ as evaluative or opinion material compiled solely for the purpose of determining the requester’s suitability, eligibility, or qualifications for the awarding or continuation of contracts, awards, or other benefits.
The information at issue was gathered as part of a reference check during the tender evaluation process. It comprised several pages of handwritten notes recording information that Council officers obtained by undertaking reference checks, and a memo between Council officers regarding referees’ comments in respect of a particular contract.
The Chief Ombudsman accepted that this information was compiled by the Council solely for the purpose of determining whether particular contracts should be awarded to the requester. In her view, the nature of the information and the circumstances in which it was obtained by the Council gave rise to an implied promise that the information and the identity of the supplier would be held in confidence.
The Chief Ombudsman concluded that the Council was justified in refusing the request under section 26(1)(c) of the LGOIMA.
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.