Request for details of out-of-court settlements and costs
Request for details of out-of-court settlements and costs—ss 9(2)(ba)(ii) and 9(2)(j) found to apply—no countervailing public interest
This request by a journalist was for the global figure for settlements and costs incurred by TVNZ in respect of defamation claims arising out of one of its programmes.
The key factor in the settlements being reached was agreement between the parties that the terms of settlement remain strictly confidential. In support of its reliance upon section 9(2)(ba)(ii) of the OIA, TVNZ pointed out that the courts have always made it clear that in all cases where there is a reasonable chance that the plaintiffs will succeed to some extent, if at all possible, settlement of legal proceedings should be pursued rather than lengthy and costly court proceedings. This, together with the factors referred to in Case No.W35268, led to the view that the terms of settlements were subject to an obligation of confidence and that there was a public interest, as identified in clause (ii) of section 9(2)(ba), in TVNZ being able to settle claims out-of-court.
In respect of section 9(2)(j) of the OIA, TVNZ advised that disclosure of the global amounts would give rise to a ‘tariff’ which could well affect the level of future settlements. In support of this view, it pointed out that the very nature of its business exposed it to defamation claims. Such claims had the potential to affect TVNZ’s profitability. Disclosure of the amount of any settlement or of the costs it incurred in reaching such a settlement would affect the expectations of claimants and the level of future claims. It would also distort the settlement process given the variety of factors which are taken into account in deciding whether or not a claim is settled and, if so, for how much. On this basis, it was accepted that disclosure of the information at issue would prejudice the interest which section 9(2)(j) seeks to protect.
In terms of section 9(1) of the OIA, consideration was then given to whether there were any public interest considerations favouring disclosure notwithstanding that disclosure would prejudice the interests which section 9(2)(ba)(ii) and section 9(2)(j) seek to protect. No such considerations were identified and it was therefore concluded that there was good reason to withhold the information.
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.