Ministry of Health not entitled to rely on section 18(g) of the OIA to refuse email exchange between Labtests staff – Ministry contracted Labtests to undertake community COVID-19 testing on its behalf – section 2(5) of the OIA establishes that information held by a contractor about work done for a public agency is subject to the OIA – Ombudsman confirmed that the information about the performance of the contract could be requested under the OIA – Ombudsman recommended the Ministry make a fresh decision, review its record-keeping processes about the contract and apologise to the requester.
Background
In October 2020, Ministry of Health | Manatū Hauora (the Ministry) received a request under the Official Information Act 1982 (OIA) for information about a positive community case of COVID-19. The information requested concerned an exchange of emails between Labtests staff about the case, as follows:
"[T]here was an email trail at LabTests (which included pathologist(s) about the community case of covid that had come back positive in their Laboratory about 1am that morning. I request that email trail."
The Ministry refused the request under section 18(g) of the OIA on the basis that the information was not held.[1] The Ministry stated that it did not receive the email trail.
In February 2021, the requester complained to the Chief Ombudsman. The Ombudsman made a number of inquiries to clarify the respective roles of the Ministry and Auckland District Health Board (ADHB) in relation to the Labtests contract.
It was eventually confirmed that the testing was undertaken by Labtests under contract to the Ministry. There was a contract between Auckland regional DHBs for community laboratory tests, but that did not include COVID-19 tests. It was anticipated that COVID-19 testing would be ‘mainstreamed’ into existing regional DHB contracts, but that had not yet occurred.
Investigation
The Ombudsman investigated the decision of the Ministry to rely on section 18(g) of the OIA, focusing on whether section 2(5) of the OIA applied to the information requested. Section 2(5) of the OIA states:
"Any information held by an independent contractor engaged by any public service agency or Minister of the Crown or organisation in [their] capacity as such contractor shall, for the purposes of this Act, be deemed to be held by the public service agency or Minister of the Crown or organisation."
The Ombudsman advised the Ministry of his provisional opinion that the email trail was deemed to be ‘held’ by the Ministry, under section 2(5) of the OIA. This was because the Ministry had contracted Labtests to undertake COVID-19 testing on its behalf. As such, the Ministry was not entitled to rely on section 18(g) of the OIA.
In response, the Ministry raised concerns about the distinction between information which is the subject of and subject to a contractual relationship. The Ministry stated that the lab test results, statistics of lab tests and the internal emails of Labtests employees were not information that the Ministry ‘owns’ in a contractual sense, and that the Ministry had little or no control over this information. The Ministry stated:
"Labtests may well contract with several outside agencies and it would be a perverse outcome if internal emails of their staff were considered to be held by each contracting client under the OIA by virtue of the contractual relationship. The Ministry understands the application of section 2(5) in the context of contractual material, however we think that the Ombudsman’s provisional opinion is a step too far in this case and may create an unintended consequence."
The Ombudsman disagreed that the applicability of section 2(5) of the OIA would create an unintended consequence. Section 2(5) of the OIA establishes that, as a matter of law, information held by a contractor about work done for a public service agency that is subject to the OIA, is in itself subject to the OIA. This means that any information about the performance of the contract is relevant.
In this case, the requested email chain related to COVID-19 testing, undertaken by Labtests on behalf of the Ministry pursuant to a contract for services. This meant that the information was deemed to be held by the Ministry, and the Ministry was obliged to retrieve the information generated by Labtests relating to the work conducted under the contract, and to make a decision on the request.
The Ombudsman noted that section 2(5) of the OIA contributes to the principle of open government by capturing information about agency operations that are being carried out by contractors, and prevents this work or activities from being shielded from the reach of the OIA, simply because the agency appears to have contracted the work out. It ensures that the principles of open government and freedom of information are not undermined by these types of arrangements.
Outcome
The Ombudsman formed the final opinion that the Ministry was not entitled to refuse the request under section 18(g) of the OIA. The Ombudsman considered that the requested email trail was ‘held’ by the Ministry under the OIA, based on its contractual agreement with Labtests to undertake COVID-19 testing.
The Ombudsman recommended that the Ministry:
- reconsider the request and make a fresh decision as a priority;
- review its record-keeping practices around contracts;[2]
- ensure staff processing OIA requests are aware of the applicability of section 2(5) of the OIA; and
- apologise to the requester.
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
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