Request for Crown Law advice given to Abortion Supervisory Committee—advice given orally and not reduced to writing—no recollection of substance of advice by either party—ASC agreed to reduce to writing its staff member’s recollection of the matters discussed during review and provide this to the requester—Chief Ombudsman satisfied all relevant information had been provided to requester
At a Select Committee hearing in 2003, the chairperson of the Abortion Supervisory Committee (ASC) advised the Select Committee that an opinion had been sought from the Crown Law Office on whether the ASC was performing its statutory duties. Upon hearing this, a special interest group made a request to the ASC for information relating to the opinion provided by the Crown Law Office.
The ASC responded that it was withholding the information under section 9(2)(h) of the OIA.
In response to the complaint, the ASC explained to the Chief Ombudsman that an error had occurred in the original advice it had given to the complainant. In particular, the ASC explained it did not in fact receive any written advice from the Crown Law Office with regard to the review of its statutory functions. Rather, Crown Counsel had attended that review and provided certain oral advice. The ASC said it did not record the content of the advice at the time and provided the Chief Ombudsman with a letter from the Crown Counsel confirming that he also did not take any notes or provide any written advice to the ASC during, or subsequent to, the review.
The Chief Ombudsman referred to the definition of ‘official information’ in the OIA, noting that it includes ‘any information’ held by an organisation subject to the Act. He also noted that sections 2(4) and 2(4A) of the OIA provide that:
(4) Subject to subsection (4A), information held by an officer or employee or member of a department or organisation in that person’s capacity as such an officer or employee or member or in that person’s capacity as a statutory officer shall, for the purposes of this Act, be deemed to be held by the department or organisation of which that person is an officer or employee or member.
(4A) Nothing in subsection (4) applies in respect of any information that any officer or employee or member of a department or organisation would not hold but for that person’s membership of, or connection with, a body other than a department or organisation, except where that membership or connection is in that person’s capacity as an officer or employee or member of that department or organisation or as a statutory officer.
The Chief Ombudsman also considered the views which he and his colleagues had previously adopted on this issue, namely that the definition of official information includes not only information held in documentary form but also knowledge of a particular fact or state of affairs held by the officers of organisations in their official capacity. The fact that such information has not been reduced to writing does not mean that it does not exist and is not ‘held’ for the purposes of the OIA.
In light of the above, the Chief Ombudsman sought confirmation as to whether the ASC had canvassed all its members on whether they had recorded Crown Counsel’s advice on this issue by way of note or minute taking or held any further information relevant to the request.
In response, the ASC confirmed that no notes or minutes were taken and no member could recollect the content of the verbal advice received from Crown Counsel. However, the ASC advised that one of its staff members who was present at the review was able to recall from memory some of the subject matters that were discussed.
The Chief Ombudsman advised that, even though this information had not yet been recorded in documentary form, it was open to the ASC and its members to either reduce the information it recalled to writing or provide it verbally to the complainant.
The Chief Ombudsman was satisfied that the ASC did not hold any documentary information relevant to the original request. However, the ASC agreed to reduce to writing its staff member’s recollection of the matters discussed during the review and provide it to the complainant. After reviewing this particular information, the Chief Ombudsman was satisfied that the ASC had sufficiently summarised the non-documentary information it held which was relevant to the original request.
The Chief Ombudsman formed the view that all the information held by the ASC falling within scope of the original request had now been provided to the complainant and he concluded his investigation on this basis.
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.