Request for email between journalist and source
Section 9(2)(a) OIA did not apply—one party consented to release—both parties acting in their professional capacities—information already in the public domain—s 9(2)(ba)(ii) did not apply—no blanket confidentiality for all communications with journalists—release with source’s consent would not damage the public interest by deterring future potential sources from cooperating with journalists—no good reason to withhold—information released
The New Zealand Police investigated the actions of a journalist involved in the purchase of a firearm for a television report that was broadcast in 2015.
In 2019, a requester sought, amongst other documents, a copy of communications between the journalist and a source, which were held by the Police.
The Police refused the request under section 9(2)(a) of the Official Information Act (OIA), to protect the privacy of natural persons, and the requester complained to the Ombudsman.
The Chief Ombudsman requested a copy of the information at issue and an explanation of the reasons for withholding.
Following a refinement of the request, the information at issue comprised a chain of emails between the journalist and source. The source had provided the communications to the Police for the purpose of their investigation.
The Police argued that withholding was necessary to protect the journalist’s privacy (section 9(2)(a) of the OIA), because it pertained to an investigation into her actions.
They also argued that release would prejudice the maintenance of the law (section 6(c) of the OIA), because people like the source would be less inclined to cooperate with Police investigations.
The Chief Ombudsman consulted the journalist, the source, and the Privacy Commissioner before forming an opinion.
The source consented to release of the information, which resolved the Police’s concerns under section 6(c) of the OIA.
The journalist opposed disclosure, not only to protect her privacy, but also to maintain the confidentiality of communications between journalists and their sources.
The Chief Ombudsman considered the need to withhold on privacy and confidentiality grounds.
Section 9(2)(a) of the OIA provides good reason for withholding (subject to a public interest test) where it is necessary to protect the privacy of natural persons.
The Chief Ombudsman did not consider it was necessary to withhold the email to protect the privacy interests of the journalist or source. The source had consented to release, meaning it would not be ‘necessary’ to withhold the information in order to protect his privacy.
Additionally, both parties were acting in their professional capacities during the exchange, and there was already a considerable amount of information about the events in the public domain (including disclosures by the journalist herself).
In the Chief Ombudsman’s view, section 9(2)(a) did not apply.
Section 9(2)(ba)(ii) of the OIA provides good reason for withholding (subject to a public interest test) when releasing information that is ‘subject to an obligation of confidence’ would be likely to damage the public interest.
The journalist submitted:
It is in the public interest that details of communications between a journalist and a source are not disclosed and the release of this information would hamper the work of investigative journalists seeking to expose potentially dangerous loopholes in the law as sources could be less likely to engage if they believe correspondence could be released.
The Chief Ombudsman noted that there is a high degree of protection afforded to journalists’ confidential sources and this is ‘justified by the need to promote the free flow information, a vital component of any democracy’. However, a blanket of confidentiality does not exist over all communications that a journalist has. Each case must be considered on its merits.
In this case, the source both provided the information to Police for investigation purposes, and confirmed that he did not object to the Police releasing the information to the requester. Release in these circumstances could not be expected to damage the public interest by deterring future potential sources from cooperating with journalists.
In the Chief Ombudsman’s view, section 9(2)(ba)(ii) did not apply.
After giving the journalist and the Police a further opportunity to comment, the Chief Ombudsman formed the opinion that there was no good reason to withhold the email chain, and the Police agreed to release it.
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.
 Hager v Attorney-General  2 NZLR 523