Request for official information about patient and staff safety — failure by the Ministry of Health to make and communicate a decision on request within extended time limit — flaws in the Ministry’s decision-making process rendered the decision unreasonable and contrary to law — undue delay in releasing official information — Ministry of Health’s Ministerial notification practices contributed to undue delay
Background
On 16 May 2022, a request was made to Ministry of Health | Manatū Hauora (the Ministry) for information about a patient and staff safety at Palmerston North Mental Health Services and Ward 21 of Palmerston North Hospital.
On 13 June 2022, the Ministry advised the requester it was extending the timeframe for making and communicating a decision on their request, to 13 July 2022.
On 14 July 2022, the Ministry wrote to the requester to advise that it had decided to grant their request, with some redactions under sections 9(2)(a) and 9(2)(ba) of the Official Information Act 1982 (OIA). The Ministry advised the complainant that it would release the information on or before 30 August 2022.
On 28 September 2022, the requester made a complaint to the Chief Ombudsman. They complained that the Ministry had unduly delayed the release of the information, as they had not received the information despite the Ministry’s advice that it would release it on or before 30 August 2022.
Following contact from the Ombudsman, the Ministry released the information to the requester on 31 October 2022.
Investigation
The Ministry confirmed that it had received the requester’s OIA request on 16 May 2022. Throughout May 2022, Ministry staff obtained and compiled the information within the scope of the request and started drafting a response. The Ministry also consulted MidCentral District Health Board (DHB) [1] and the Health and Disability Commissioner about the request.
On 13 June 2022, due to the volume and nature of the consultation required, the Ministry advised the requester it was extending the timeframe to make and communicate a decision on their request, to 13 July 2022.[2]
On 1 July 2022, Health New Zealand – Te Whatu Ora (Health New Zealand) was established, replacing all DHBs. As a result, the Mental Health Directorate, which held the information within the scope of the request, was split between the Ministry and Health New Zealand. Following this, the Ministry decided that the response should be addressed from Health New Zealand.
On 14 July 2022, the Ministry wrote to the requester, advising it had decided to grant the request and would release the information on or before 30 August 2022, with some redactions under sections 9(2)(a) and 9(2)(ba) of the Official Information Act 1982 (OIA).
On 9 August 2022, the Ministry consulted with two individuals who were named in information within scope of the request. Following the consultation, the Ministry consulted various teams including its OIA team, the Mental Health and Addiction team, its own legal team and Health New Zealand.
Health New Zealand advised the Ministry that the response should be addressed from the Ministry rather than Health New Zealand, as had previously been agreed. The response was updated to reflect this.
On 6 September 2022, the Ministry received advice from the Mental Health and Addiction team that a report from the District Inspector of Mental Health within scope of the request should be withheld under section 9(2)(ba)(i) of the OIA. As a result, the Ministry re-consulted with Health New Zealand, to confirm what information had previously been released and to advise of another DHB staff member who was named in the information.
Consultations went back and forth until the response was finally sent back to the Mental Health and Addiction team for approval and sign-out on 21 October 2022. The response was sent that day to the Minister of Health for ‘noting’. The information was released to the complainant on 31 October 2022.
The Ministry acknowledged that there was undue delay in releasing the information to the requester. It advised that release of the information was delayed due to ‘extra consideration of the privacy interest in the information, given the very sensitive nature of the contents of the document’, discussions with the Ministry’s Legal Team and Health New Zealand, and the impact of staff movements within the OIA team.
Analysis
The OIA requires an agency to:
- make a decision and communicate it to the requester ‘as soon as reasonably practicable’ and no later than 20 working days after the request is received;[3] and
- release any official information it has decided to without ‘undue delay’.[4]
If an agency fails to make a decision and communicate it to the requester within the required timeframe, the Ombudsman may form an opinion that the agency has acted contrary to law.[5] In cases where the Ombudsman considers that an agency has made a decision, but that the decision-making process was flawed or inadequate, they may form the opinion that the decision was unreasonable and contrary to law.[6] Additionally, if there is a delay in releasing the information to the requester, the Ombudsman may form the opinion that the delay is undue, and therefore that the request has been refused.[7]
Decision-making
Before an agency makes and communicates a decision on a request, it is expected to have identified the specific information within scope of the request, collated and reviewed this information, and set out specific criteria for determining which information (if any) is to be withheld.
The High Court found in Kelsey v Minister of Trade that it was a ‘fundamental point that the Act required the Minister to assess each piece of information requested […] against the criteria in the Act for withholding information before that request could be refused’.[8]The Court rejected the Minister’s submission that he was entitled to consider the nature and subject matter of the material requested without undertaking a ‘document by document analysis’, and held that the ‘“blanket” approach taken by the Minister […] did not comply with the text, scheme and purpose of the Act’.[9]
In this case, the Ministry’s decision was not communicated to the requester by the extended maximum timeframe of 13 July 2022. This was contrary to law as it breached section 15(1) of the OIA.[10]
Furthermore, when the Ministry made its decision on 14 July 2022 to release the requested information subject to redactions under sections 9(2)(a) and 9(2)(ba) of the OIA, it was unclear to what extent the Ministry had collated and reviewed the relevant material, including the level of consideration given to the specific parts of the documents it intended to withhold. The decision did not identify what information was actually held. Instead, it advised that a decision had been made to release the information, although it would take some time to prepare this for release, with ‘some’ information to be withheld under sections 9(2)(a) and 9(2)(ba) of the OIA.
To constitute a proper decision under the OIA, a response must be very clear as to whether a request is granted, in full or in part. It must also confirm if information is intended to be withheld, and give the reasons for this. The agency is expected to have identified the specific information within the scope of the request, collated and reviewed this information, and set specific criteria for determining what information (if any) is to be withheld. All necessary consultation with relevant parties to inform the decision, should be completed before the decision is made.
After purportedly making its decision and communicating it to the requester on 14 July 2022, the Ministry’s release of the information was delayed due to reviews by several Ministry teams and consultations with external agencies. It was then further delayed due to the Ministry’s notification to the Minister of Health.
Only the consultation with the Health and Disability Commissioner and the initial consultation with Health New Zealand – MidCentral District had occurred prior to the decision on 14 July 2022. All other consultations occurred after 14 July 2022. Additionally, the Ministry’s response indicated that it did not decide to withhold the report from the District Inspector of Mental Health under section 9(2)(ba)(i) of the OIA until September 2022. This suggested that on 14 July 2022, the Ministry had not turned its mind to the specifics of the information, and precisely what it would be releasing or withholding.
As at 14 July 2022, the Ministry’s decision was unclear regarding what information the requester was to receive, and what was going to be withheld and why. Accordingly, the Ombudsman formed the opinion that the flaws in the Ministry’s decision of 14 July 2022 were unreasonable and contrary to law.
Undue delay
In most cases, information should be able to be released at the same time as giving notice of the decision on an OIA request. Where it is not practicable to collate and prepare information for release at the same time as the decision, then a two-staged approach may be justified. This would generally be where the amount of work involved in preparing the information for release—eg making redactions and copies—is considerable. This is permissible under the OIA and there is no set timeframe for making the information available.
However, undue delay in making official information available in response to a request is deemed to be a refusal to make the information available. This indicates that information should be released without ‘undue’ delay. What is ‘undue’ depends on the circumstances in each case. Several factors may help in determining whether there has been undue delay, including:
- whether the request was made with urgency;
- the nature and volume of the information to be released;
- the impact on the agency; and
- whether the agency has met the timeframe commitments it made.
The Ministry accepted that it unduly delayed releasing the information to the requester, and acknowledged it did not meet the timeframe commitments it made to release the information by 30 August 2022. The Ombudsman was also concerned that the Ministry made no attempt to proactively contact the requester to advise them of the delay. The Ombudsman felt it would have been plainly obvious that the 30 August 2022 deadline would not be met, and that the requester should have been informed of this.
Given the Ministry’s position and explanations, the Ombudsman formed the opinion that there was ‘undue delay’ in the Ministry releasing the information.
Review and sign-out process
The Ministry’s response went through several sign-out phases. It was reviewed by numerous Ministry teams, sometimes repeatedly, and was approved by staff of varying seniority within the same teams.
The OIA requires an agency, through its chief executive or an authorised officer or staff member, to decide whether to grant a request. Staff members may be asked to prepare a proposed response to an OIA request and to put that before a decision maker. While not required by the OIA, an agency may at its discretion put in place processes to review the quality of proposed responses and to keep others within the department informed about what might be released.
However, in this case the Ombudsman formed the opinion that the review and sign-out process followed by the Ministry was unnecessarily convoluted. It was not clear why so many layers of review were necessary, nor what tangible outcome was achieved by each stage of review. It appeared that the review and sign-out process was unnecessarily lengthy, and that this contributed to the delay.
Ministerial notification
There was a period of five working days[11] between the Ministry’s notification to the Minister on 21 October 2022 that the information was to be released, and the Minister’s confirmation that they had ‘noted’ the response on 31 October 2022. It was not clear why the Ministry considered it necessary to delay release of the information to the requester until the Minister responded to the notification. Ministerial notifications are for information only and are not a form of Ministerial approval or sign-out.[12]
The ‘no surprises’ principle in the Cabinet Manual is clear that agencies:[13]
"should inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or become the subject of public debate."
It may be reasonable for agencies to notify Ministers of information being released under the OIA that could be sensitive or controversial in nature, or otherwise likely to be subject to media coverage or political debate. However, Ministerial notification processes must not interfere with an agency’s ability to comply with its statutory timeliness obligations. Where possible, Ministerial notification should occur at the same time that information is released to the requester, unless a delay is justified by the specific circumstances of the case.[14]
The Ombudsman found that the decision to delay release for Ministerial notification by 5 working days was unreasonable in the circumstances and unnecessarily exacerbated the delay experienced by the requester.
Outcome
The Ombudsman formed the opinion that:
- the Ministry’s failure to make a decision and communicate it by the extended timeframe of 13 July 2022 was a breach of section 15(1) of the OIA and contrary to law;
- flaws in the Ministry’s decision-making process rendered the decision communicated on 14 July 2022 unreasonable and contrary to law, specifically:
- at the point it made and communicated its decision to release the information subject to redactions, the Ministry did not appear to have adequately collated and reviewed the information in question; and
- the Ministry’s delay releasing the information until 31 October 2022 was unreasonable.
The Ombudsman recommended that the Ministry:
- issue a comprehensive written apology to the requester for its failure to make and communicate a decision by the extended deadline of 13 July 2022, and for its flawed decision-making and undue delay in releasing the information; and
- review its processes around decision-making and the release of information, including its Ministerial notification process.
The Ministry accepted and implemented the recommendations.
This case note is published under the authority of the Ombudsmen Rules 1989. 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.
Footnotes
- Following the establishment of Te Whatu Ora, this DHB is now known as Health New Zealand – Te Whatu Ora MidCentral District. Return to text
- Sections 15A(1)(a) and 15A(1)(b) OIA. Return to text
- Section 15(1) OIA. Return to text
- Section 28(5) OIA. Return to text
- Section 15(1) OIA. Return to text
- Section 30(1)(b) OIA. Return to text
- Section 28(5) OIA. Return to text
- Kelsey v Minister of Trade [2015] NZHC 2497 at [108]. Return to text
- Kelsey, at [110]. Return to text
- Section 28(4)(b) OIA deems these failures to be a ‘refusal’. Return to text
- Allowing for Labour Day on 24 October 2022. Return to text
- Where a Minister’s input is needed on an OIA request being processed by an agency, that input should be sought prior to the agency’s decision on the request, by way of consultation. Return to text
- Department of the Prime Minister and Cabinet, Cabinet Manual, published 2017, paragraph 3.22(a). The Cabinet Manual has been updated since this investigation, the relevant paragraph for the ‘no surprises’ principle can be found at paragraph 3.26(a) in the Cabinet Manual published 2023. The slight change to the wording does not affect the substance of the principle. Return to text
- Office of the Ombudsman, Dealing with OIA requests involving Ministers: A guide to transfer, consultation, and the notification of decisions on OIA requests, published April 2019. Return to text
Last updated: