Revealing the respective positions and concerns of the parties to the negotiation would lead to reduced cooperation and information sharing, and decrease likelihood of compromise—s 7(2)(i) applies
Environment Canterbury issued a media release regarding potential irregularities identified in relation to payments made to the Total Mobility Scheme (TMS). The TMS provides a community service by assisting eligible people with mobility issues to access appropriate transport. Users with a smart card receive subsidised fares with approved taxi companies that participate in the scheme. The TMS is subsidised by the New Zealand Transport Agency (NZTA) and Environment Canterbury.
A requester sought correspondence between Environment Canterbury and the taxi companies involved in the TMS, relating to Environment Canterbury’s belief that taxi drivers had billed for work that was not done. Environment Canterbury refused the request under section 7(2)(i) of the LGOIMA, and the requester complained to the Ombudsman.
The Ombudsman concluded that section 7(2)(i) applied, and was not outweighed by the public interest in disclosure. At the time of its decision, Environment Canterbury had initiated the dispute resolution mechanism in its contracts with the taxi companies involved. The first step under that mechanism was to carry out good faith negotiations about the issue at hand. Therefore, at the time of its decision, negotiations between Environment Canterbury and the taxi companies were in the process of being scheduled.
Broadly speaking, the purpose of the negotiations was to reach an understanding on the extent and value of the contested trips. The correspondence in question related directly to, and was the subject of, the negotiations. The information indicated the respective positions and concerns of the parties to the negotiation. The Ombudsman was doubtful that the negotiations could have been carried on successfully had the information been released. He stated:
Ombudsmen have generally accepted that the disclosure of information related to negotiations can decrease cooperation between the parties. Decreased cooperation curtails the ability of parties to participate in negotiations in good faith. This may result in reduced information sharing, and a reduced willingness to take account of one another’s interests and to reach a level of compromise.
The Ombudsman acknowledged that ‘the public has a right to know and to be assured that when such allegations arise, Environment Canterbury takes these allegations seriously and acts appropriately to investigate and address them’. However, this did not outweigh the need to protect Environment Canterbury’s ability to negotiate the best possible outcome to the dispute. The media statement explained what had happened, the actions being taken to address the issue, and the steps being taken to prevent the issue from reoccurring. This information substantially addressed the transparency and accountability issues.
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.
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