Request for documents prepared for Minister regarding Treaty of Waitangi claims
Due particularity and duty to provide reasonable assistance—s 12(2) and 13
The Minister of State Owned Enterprises was asked to provide any documents prepared for him since October 1990 regarding claims under the Treaty of Waitangi in general, and in relation to Railways Corporation land in particular. The Minister declined the request in reliance upon sections 9(2)(b)(ii), (f)(iv) and (j) and 12(2) of the OIA.
In response to the complaint, the Minister’s advisers noted that while certain information likely to be covered by the request would be protected under the provisions of section 9(2), the major reason for refusing the request was that it was not specific enough.
The Chief Ombudsman explained to the Minister that section 12(2) of the OIA is not a reason for refusal and he pointed out the obligations which the OIA places on departments, Ministers of the Crown and organisations when they receive a request where the official information requested is not ‘specified with due particularity’. Where the recipient of the request is unable to identify the information at issue, the appropriate course is to give reasonable assistance to the requester to identify the information sought.
In this case, no attempt had been made to assist the requester. Furthermore, given that the particular information which the request was seeking had not been identified, the reasons given for refusing the request could only have been based on an assumption by the Minister’s advisers as to the specific information which was being sought. Such reasoning is not sufficient to meet the purposes of the Act. Before a reason can be given for refusing a request, the information at issue must be identified by the holder.
After discussions with the officials and the requester, the request was clarified and the Minister undertook to consider that request afresh. The Chief Ombudsman therefore discontinued his investigation of the earlier decision.
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.