Request by charitable trust for its compliance file held by Department of Internal Affairs
Request by charitable trust for its compliance file held by Department of Internal Affairs—information about trust provided to Department by informant in confidence and an investigation underway—Part 4 of OIA applies as request by body corporate for personal information about itself—release of the information would prejudice the Department’s current investigation and its ability to effectively carry out its role in maintaining the law in the future—s 27(1)(a) and s 6(c) applied
A charitable trust that raised funds for community purposes (the Trust) generated most of its income from the operation of gaming machines in hotels and taverns. As such it held a licence for the operation of these gaming machines issued by the Department of Internal Affairs under the Gaming and Lotteries Act 1977. The Trust applied to renew its licence in 2003 and was duly advised by the Department that its application was to be declined on the basis that the Trust was in breach of certain licence conditions. Given that the refusal to renew its gaming licence would have serious consequences for the Trust, it wrote to the Department requesting certain official information, including the Department’s compliance file. It said it wanted this information to enable it to respond fully to the Department’s allegations.
In response, the Department released some of the information requested but withheld the remainder, relying upon sections 9(2)(a) and 6(c) of the OIA.
The Ombudsman wrote to the Department notifying it of the Trust’s complaint. In that letter the Ombudsman noted that the Trust had requested some personal information about itself. Given that the Trust was a body corporate, the Ombudsman advised that the original request must be considered according to the provisions of Part 4 of the OIA, which apply to requests made by bodies corporate for information about themselves. In particular, section 27 sets out the grounds upon which a request for such information may be refused.
The Department explained that under the Gaming and Lotteries Act 1977, it was tasked with ensuring the provisions of the Act are maintained and complied with, and where necessary, alleged offences are investigated. In this particular case, the Department had received information from an informant about a possible breach by the Trust of both the legislation and/or the Trust’s licensing conditions. As a result, the Department was currently investigating these allegations. It advised that the information from the informant had been provided in the strictest of confidence and that this was a necessary undertaking by the Department to encourage people to come forward with information relating to offences or breaches of the Act.
The Department was concerned that if the information were to be released, information or evidence relating to this particular case could be withheld or destroyed. Further, members of the public would likely be deterred from giving similar information in the future as confidentiality could no longer be assured, thereby prejudicing the Department’s ability to effectively maintain and enforce the provisions of the Gaming and Lotteries Act.
The Ombudsman was satisfied there was a real risk that release of the information would prejudice the Department’s current investigation and its ability to effectively carry out its role in maintaining the law in the future. It was therefore the Ombudsman’s view that the Department was entitled to withhold the information under sections 6(c) and 27(1)(a).
Comment
The complainant argued that prejudice to the maintenance of the law is usually invoked in serious criminal cases involving the Police or situations affecting national security and it would therefore be disproportionate to rely on section 6(c) in this case, given the relatively administrative nature of the Department’s investigation. However, cases where prejudice to the maintenance of the law is likely to arise are not restricted to such situations. It has generally been accepted by Ombudsmen that a government department will have a role in maintaining the law when that department has specific responsibilities to ensure compliance under an enactment. In this particular case, the Ombudsman was satisfied that the Department had a role in maintaining the law in terms of its responsibility for the enforcement and maintenance of the Gaming Lotteries Act.
The complainant also argued that the complete compliance file should be disclosed in the interests of natural justice, specifically to assist the Trust in preparing a submission in response to the Department’s provisional decision not to renew its gaming licence. The Ombudsman was unable to consider these concerns in terms of the applicability of section 27(1)(a), because if release is ‘likely prejudice to the maintenance of the law’, this is a conclusive reason for withholding official information. In effect, Parliament has decided that if this provision applies, it is in the public interest to withhold the information. There is no scope to consider whether there are any countervailing public interest considerations (such as issues of natural justice) which might outweigh the need to withhold the information.
Given that the Ombudsman’s investigation was limited to the Department’s decision at the time and in the circumstances as they were when the request was originally made, he suggested that the Trust might wish to consider making a fresh request to the Department for the complete compliance file once the investigation was concluded. At that point, different considerations may apply, in terms of whether there was any good reason to withhold the information.
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.