Request for evidentiary conclusions in respect of 15 issues or assertions and information about religious affiliation or association of staff
Information not held—evidentiary conclusions would need to be created—to the extent that information about religious affiliation or association of staff was held in mind of Commissioner it would be held in a personal capacity
A father made a complaint on behalf of his daughter to the Health and Disability Commissioner (HDC). He was dissatisfied with the HDC’s decision to take no further action on his complaint, and submitted a number of official information requests. He then complained to the Ombudsman about the adequacy of the HDC’s response to those requests.
Request 1: Evidentiary conclusions
The requester (being advised that the HDC applied the evidentiary standard of the ‘balance of probabilities’), asked what conclusions had been reached applying that standard in respect of 15 issues or assertions. The HDC responded that the basis of the Commissioner’s decision to take no further action on the complaint had already been provided.
The Ombudsman noted that questions seeking explanations rather than information held by an agency are not covered by the OIA, unless they are incorporated into a request for a statement of reasons under section 23. The OIA is not a mechanism to allow the requester to interrogate or cross-examine an agency about its decision.
The Ombudsman considered the HDC had adequately responded to the request by referring the requester back to the decision to take no further action. The reasons for that decision had already been provided to the requester. The HDC was not required to generate new information in order to respond to the 15 issues or assertions.
Request 2: Religious affiliation
The requester sought the number and names of staff with whom the Commissioner shared a church affiliation or association. The Commissioner categorically denied what was seen as the implied impropriety in HDC appointments. He refused to supply information about the church affiliation or association of staff under sections 9(2)(a) (privacy) and 18(h) of the OIA.
In reply, the requester denied that he was implying any impropriety in HDC appointments. He said he sought factual information only, about the number of staff with whom the Commissioner shared a church affiliation or association. The Commissioner replied that this information was not collected by HDC, and reiterated that it was in any event private to the individuals concerned.
The requester complained to the Ombudsman, maintaining that the information need not be collected by the HDC, since it was already in the Commissioner’s head. The Ombudsman noted that the church affiliation or association of staff is not needed or recorded by the HDC. To the extent that such information is in the mind of the Commissioner, it would be held by him in a private capacity, and therefore would not be ‘official information’ for the purpose of the OIA.
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.