Request for breathalyser manual
Requester sought breathalyser manual to aid his defence in court—manual provided to ESR in confidence for purpose of servicing and maintenance—manufacturer would withdraw manuals if released—ESR would no longer be able to maintain breathalyser, which would have a detrimental effect on New Zealand road safety—s 9(2)(ba)(ii) applied—manual only peripherally relevant to requester’s prosecution so no overriding public interest in release
A solicitor was instructed to act for his client in relation to a prosecution by the New Zealand Police. The solicitor requested from Environmental Science and Research (ESR) information relating to the Sere Ethylometre 679 S/N 4110 Evidential Breath Testing Device (the ‘Device’), including the instrument manual. ESR withheld the information and the Chief Ombudsman was asked to review this decision.
The information comprised a service manual which described in detail, with circuit diagrams, the specifications for the Device. ESR advised that it had received a number of applications under section 20 of the Summary Proceedings Act 1957 (the SPA) relating to the technical manuals for both the Device and for a similar evidential breath-testing device used by the Police. ESR queried whether this would provide an alternative avenue to gain access to the information. The High Court proceedings considering the applications were set to be heard in five months time, and the solicitor advised that the prosecution of his client in this case had been stayed pending the resolution of the matter. In these circumstances, the Chief Ombudsman decided it would be appropriate to await the outcome of the High Court proceedings, and so discontinued his inquiries.
Justice Williams in Institute of Environmental Science and Research Limited & anor v Tuiavaii and others delivered his decision in June 2002, setting aside the witness summonses issued against ESR. As a result, the Chief Ombudsman resumed his enquiries into this case, focusing in particular on section 9(2)(ba)(ii) of the OIA.
The Chief Ombudsman first considered whether the information was subject to an obligation of confidence. From enquiries made with ESR, the Chief Ombudsman was advised that the Device is manufactured by Societe d’Etude et de Realisation d’Equipments Speciaux (Seres) which is represented in New Zealand by Water & Waste Treatment New Zealand Limited (W&W). To support its contention that it held the information at issue subject to an obligation of confidence, ESR provided a copy of a letter from Seres and W&W, which stated:
…information contained in the manual was made available to ESR…on the clear understanding that strict confidentiality was maintained at all times and that any information contained in the Seres instrument would not be released to a third party. …It contains circuit diagrams and other technically and commercially sensitive information …which…is proprietary and the property of Seres. Seres would definitely seek to have all proprietary information held by ESR returned to …W&W…for immediate dispatch to us should ESR be required to release it to a third party.
The Chief Ombudsman then considered whether disclosure of the information would be likely to damage the public interest. ESR held the manual to service the Device for the New Zealand Police. Therefore, if the manual was to be withdrawn by W&W from New Zealand, ESR would no longer be able to service the Device. As a result, the New Zealand Police would be unable to continue using the Device for evidential breath testing, and this would be likely to detrimentally affect measures designed to promote road safety.
Section 9(2)(ba)(ii) specifically requires an assessment as to whether such damage to the public interest ‘would be likely’ to occur if the information were released. The Chief Ombudsman noted the following comments of Justice Williams in Tuiavaii at paragraph 57:
As far as the Land Transport Act 1998 is concerned, it was clear from its Long Title, even before expressly stated in the 2001 Amendment, that Parliament regards road safety as of major importance and alcohol impaired driving as inimical to that. For that reason, whilst Parliament has been careful in the way it has promulgated and amended the blood and breath alcohol regimes over the years to balance the public interest with the rights and obligations of drivers who have been drinking, the legislative trend has been to limit or exclude the availability of what can be termed, with no pejorative overtones, technical defences.
The reasonable compliance provisions of section 64(2) and the exclusion defences in section 64(4) & (5) are examples. The 2001 Amendment continues that trend of excluding such defences to ‘improve road safety enforcement’. It is therefore clear, both from the terms of the Land Transport Act 1998 and the 2001 Amendment, that Parliament wishes to ensure that New Zealand continues to have enforceable blood and breath alcohol testing regimes for drivers while safeguarding their rights as far as the statute preserves them. It would be contrary to Parliament’s wishes so to construe the Land Transport Act 1998 to limit the availability of an effective breath testing regime for drivers through the inoperability of evidential breath testing devices unless such is mandated by the statute and the authorities. The Court accepts that CMI and Seres are determined about their intention to require the return of their property, instrument manuals, to them in the event that disclosure is ordered. The Court further accepts that, in time, the withdrawal of the manuals would risk creating serious problems for the operation of an enforceable breath and thus blood-alcohol-testing regime in this country. All of that suggests, as far as these applications are concerned, that the Court should be cautious about reaching any decision which might limit the future availability of such regimes.
The Chief Ombudsman considered whether there were any other considerations which rendered it desirable, in the public interest, to make the information available. He noted that there would be a public interest if disclosure of the manual was necessary for a fair trial of the solicitor’s client. In order to determine whether this was in fact the case here, the Chief Ombudsman again referred to the Tuiavii case. There, the applicants sought the manuals for similar reasons, namely to discredit the reliability of the Device. Justice Williams commented on the relevance of the manual to a fair trial in his decision. In particular, the Chief Ombudsman noted his comments at paragraph 62 which read:
…the results produced by the devices which tested these respondents are deemed conclusive unless Mr Churchill’s analysis of the blood breath alcohol correlations, operator’s manuals, log books and result cards raises reasonable doubt to the contrary. In that regard, the instrument manuals containing the material described by Dr Gainsford must in the light of his evidence be regarded, even considering the matter at its most favourable for the respondents, as being of peripheral, secondary or background relevance at most. They contain diagrams, a certain amount of information as to operating methods, calibration and settings for the model, not individual machines. These manuals, it is agreed, do not assist with demonstrating performance of a particular breath testing device on the day and time at which the evidential breath test was carried out.
The Chief Ombudsman was satisfied that ESR held the manual subject to an obligation of confidence. It appeared that, if the information were to be disclosed, there was a real risk that Seres or their New Zealand representative, W&W, would withdraw the manuals. This would result in ESR no longer being able to maintain the breathalysers, which are approved evidential breath testing devices. In the Chief Ombudsman’s view, such a result would be contrary to the public interest by detrimentally affecting measures designed to promote road safety. The Chief Ombudsman therefore considered that section 9(2)(ba)(ii) applied to the information at issue.
Further, having regard to the decision of Justice Williams in Tuiavaii, it was apparent to the Chief Ombudsman that the Court did not consider the technical manuals necessary for the conduct of a fair trial for a person charged with driving with excess breath alcohol. The Chief Ombudsman was therefore unable to see any public interest grounds favouring disclosure of the information that outweighed the interests protected by section 9(2)(ba)(ii).
The Chief Ombudsman duly formed the view that ESR was entitled to withhold the information under section 9(2)(ba)(ii) of the OIA.
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.