Request for draft investigation report into spending by Mayor Len Brown
Section 7(2)(c)(i) LGOIMA applied—draft investigation report subject to an obligation of confidence owed to the Mayor, who was the subject of / participant in the investigation—release would prejudice the ongoing supply of information from subjects or participants in similar investigations in the future—there is a public interest in encouraging full participation in this process to ensure the most accurate report possible
In late 2013, Auckland Council commissioned Ernst & Young (EY) to do an external audit into spending by then-Mayor, Len Brown. EY’s final report was released, but a requester sought the draft report provided to the Mayor for comment. He argued there was a public interest in knowing what information was taken out of the final report and for what reasons. The Council withheld the draft report in reliance on section 7(2)(c)(i) of the LGOIMA, and the requester complained to the Ombudsman.
The Council explained that the process of providing the Mayor with an opportunity to comment on the draft report was conducted confidentially. Circulation of the draft report was very limited, and subject to express obligations of confidence on the Mayor, the Council and EY. The Council argued that, without confidentiality, the Mayor’s opportunity to comment as the subject of the report would be rendered valueless, and the natural justice entitlement that Council was endeavouring to meet would be undermined. It also noted that release could expose erroneous or unjustified material after the Mayor had successfully sought to correct this. Disclosure of drafts such as this would be likely to prejudice the Council’s ability to obtain comment from any subject of a report on a draft, and damage the public interest, which requires the observation of fair process and natural justice by providing persons that are the subject of reports with an opportunity to comment.
The Chief Ombudsman formed the opinion that section 7(2)(c)(i) provided good reason to withhold the draft report. She stated:
Ombudsmen have generally taken the approach that documents, which are the end product of a deliberative drafting process and are labelled ‘Draft’, and then circulated to third parties for comment before being finalised, can be withheld under this section if there had been an understanding that such a process would be carried out on a confidential basis.
[I]t [is] in the public interest that such a process be undertaken in that it would likely assist in achieving a more accurate final report by providing an opportunity for mistakes or misunderstandings to be corrected. Not only does it seem to be a sound administrative practice in that sense, but it also recognises the importance of people having the opportunity of commenting on potential adverse comment in the interests of fair process and natural justice.
By not recognising confidentiality in this process, I am inclined to the view that it would be likely that the supply of similar information in the future would be prejudiced should participants in the process be aware that confidentiality assurances may not necessarily be upheld. In the operations of local authorities it seems inevitable that, from time to time, issues will emerge where the commissioning of these types of independent reports will be necessary. I consider that there is a public interest in encouraging full participation in this process to ensure the most accurate report possible.
While there was a strong public interest in disclosure of information about the external audit in order to promote transparency and accountability, that interest had been met by the release of the final report. There was nothing in the draft report (such as information that might reveal some impropriety in practice or process) that required disclosure in the public interest.
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.