Request for copy of letter from Fire Brigade Volunteer Section to District Chief Fire Officer—majority of letter withheld—volunteer firefighters ‘members’ of an organisation for purposes of s 9(2)(g)(ii)—good reason to withhold to maintain effective conduct of public affairs through the protection of members from improper pressure and harassment
A branch of the Professional Firefighters Union wrote to the District Chief Fire Officer requesting a copy of a letter delivered to the fire station by a volunteer fire officer on a specified date. The New Zealand Fire Service Commission responded by releasing only one paragraph of the letter to the Union and withholding the remainder under section 9(2)(a) of the OIA. The Union repeated its request for the whole letter. The Commission responded by re-releasing the information already disclosed and advising the Union that the remaining parts of the letter were being withheld in reliance on sections 9(2)(a), 9(2)(e), 9(2)(g)(ii) and 9(2)(k) of the OIA.
The Union later clarified that it did not require release of the names and signatures of those persons who signed the letter at issue. Accordingly, section 9(2)(a) no longer applied as a reason for withholding.
In support of its reliance on section 9(2)(g)(ii), the Commission explained that there had recently been significant conflict between paid permanent firefighters and volunteer firefighters. This had resulted in some paid staff subjecting volunteer staff to intimidation, threats and general harassment. Examples of this were provided. The Commission advised that the fire district concerned in this case had experienced the most significant amount of conflict between paid staff and volunteers. The views of the volunteer members of the Brigade on this situation had been formally conveyed to the Commission in the letter under request.
The Commission also explained that, since the letter had been written, the situation had somewhat stabilised. The Commission was of the view that releasing the remaining parts of the letter would only undo the progress that had been made in improving relationships between paid staff and volunteers and would be likely to lead to further incidents of harassment towards volunteers. The Commission believed that the overall public interest lay in withholding the remaining part of the letter as its release might jeopardise the functioning of fire services in the district.
When considering whether section 9(2)(g)(ii) applied, it was necessary to consider:
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What sort of behaviour may be expected as a result of the release of the information
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Against whom the behaviour would be directed
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Whether that person or those persons fall within the categories specified in the legislation
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How that person or those persons contribute to the effective conduct of public affairs
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How that contribution is likely to be affected by the expected behaviour
In assessing these factors, consideration was given to the past behaviour of the requesters and of others who may have access to the released information, and the effects of that behaviour.
In this case, it was accepted that the requirements of section 9(2)(g)(ii) had been met. There was a strong public interest in ensuring the maintenance of harmonious working relationships between firefighters that was essential to the provision of an effective and efficient fire service in the district concerned. It was not considered that there were any public interest considerations strong enough to outweigh the interest requiring protection under section 9(2)(g)(ii).
The requester argued that section 9(2)(g)(ii) did not apply because volunteer firefighters did not fall within the categories specified in section 9(2)(g)(ii), that is, that they were not ‘members’ or ‘employees’ of the Commission. This argument was rejected on the basis that there was an agreement of service under section 34(1) of the Fire Services Act between the volunteer firefighters concerned and the Commission and the volunteers were registered as a volunteer fire brigade under section 34(3) of the Act. The volunteer fire brigade as a group was therefore an ‘employee’ by virtue of its agreement of service with the Commission so that this precondition for section 9(2)(g)(ii) to apply was therefore satisfied.
As there was good reason under section 9(2)(g)(ii) to withhold the information at issue it was not necessary to consider the other reasons relied on for withholding the information at issue.
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.