The Campaign Against Foreign Control of Aotearoa (CAFCA) complained to the Ombudsman about the Overseas Investment Office’s (OIO’s) decision to refuse its request for information deleted from the file relating to Kim Dotcom’s applications for consent to invest in New Zealand. Although the OIO recommended that Mr Dotcom’s applications be granted, ultimately Ministers declined to grant consent.
The Ombudsman found that most of the deletions were justified,[1] but queried the basis for withholding parts of the OIO’s advice to Ministers on the applications. The advice was withheld in order to maintain:
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legal professional privilege (section 9(2)(h) of the OIA);
- the effective conduct of public affairs through the free and frank expression of opinions between Ministers and officials (section 9(2)(g)(i) of the OIA).
After considering the Ombudsman’s comments in consultation with the Crown Law Office, the Attorney-General agreed to waive privilege. The information was released and the complaint resolved. This case note contains some helpful information about how the Ombudsmen interpret and apply the legal professional privilege and free and frank withholding provisions of 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.
[1] The deletions included some legally privileged material (withheld under section 9(2)(h) of the OIA), and personal and financial details about the applicant and his family (withheld under sections 9(2)(a) and 9(2)(ba) of the OIA). In respect of the latter material, the Ombudsman found that “there can be some expectation of privacy and confidentiality in respect of personal financial details that are volunteered as part of an application for overseas investment”. Although there is a public interest in accountability for the advice on which ministerial decisions on overseas investment applications are based, the Ombudsman did not think that necessarily required disclosure of all of the applicant’s personal financial information.