Information held by Department of Labour relating to Union Incentives Trust—whether held solely as agent
The Chief Ombudsman was approached to investigate a decision of the Minister of Labour to refuse to make available copies of applications for funds made to the Union Incentives Trust.
The Trust was an unincorporated body, established under a Deed of Trust, to assist unions in fulfilling their obligations under the Labour Relations Act. The Chief Ombudsman was informed that this entailed giving financial assistance to unions for approved projects having the essential aim of improving efficiency within the particular union, or a group of unions. Officers of the Department of Labour were involved, in their official capacity, in processing applications according to guidelines laid down by Trustees.
Both the Minister and the Department took the view that the requested information, while held physically by the Department, was not ‘official information’ under the OIA.
The Chief Ombudsman considered the Department’s viewpoint in light of subsections (2), (3) and (4) of section 2 of the OIA.
The Department argued that information held by the Trust was not official information in terms of sections 2(2) and 2(3); and the Department’s officers held information relating to the Trust as agents of the Trust, with the result that the information should not be classified as ‘official information’ by virtue of paragraph (f) of the definition of ‘official information’ in section 2(1) of the OIA.
The Chief Ombudsman noted that:
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There were no Trustees before the Trust was created.
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The former Minister of Labour, the Secretary of Labour and the Assistant Secretary of Labour were parties to the Trust Deed.
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The Trust Deed recorded that:
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It was a decision by the New Zealand Government to assist unions and to do so by creating a Union Incentives Scheme and to allocate money for this purpose;
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Cabinet decided to create a Trust;
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The Trustees agreed to act as such.
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The unions initiated nothing, but accepted what the Crown was offering; the Crown then proceeded to establish the Scheme.
Accordingly, although the Scheme included participation by union members, that participation did not seem to affect the central point which was that the Trust was decided upon and established by the Crown.
The Department further submitted that there was no ‘tangible, clear and substantial’ connection between its ‘functions’ and those of the Trust. However, in the Chief Ombudsman’s view the question was whether the Department officials had been charged with involvement in the Union Incentive Scheme. If so, the Chief Ombudsman considered that it was a departmental function and the fact that the Crown chose to administer the Scheme by means of an unincorporated Trust could not affect the fact that the Scheme was a method of implementing a Crown policy to spend public funds on unions and that it was a function of the Department’s officials to assist with the running of the Trust.
The Chief Ombudsman also noted that the Trust received public funding. He pointed out that the OIA is an instrument to promote accountability (section 4(a)(ii) of the OIA refers) and it would go without saying that one of the primary elements of the accountability of Ministers and officials is their responsibility for expenditure of the funds voted by Parliament. The various provisions of the section headed ‘Interpretation’ (section 2) must be read with that purpose in mind.
Accordingly, the Chief Ombudsman formed the view that the Union Incentives Trust was a body established by the Department of Labour on the instructions of Ministers to perform functions connected with those of the Department. As an unincorporated body the information it held was therefore deemed by section 2(2) to be information held by the Department. Both the plain wording and the intention of section 2(2) supported this opinion.
The Chief Ombudsman also addressed the Department’s point that paragraph (f) of the definition of ‘official information’ in section 2(1) of the OIA was applicable. There was some debate about how the term ‘agent’ in that paragraph should be interpreted. The Chief Ombudsman was of the view that paragraph (f) is designed to apply in a case where a third party has entrusted the Crown with information solely for the purposes of holding it pending further instructions as to its disposal on behalf of that party. The Chief Ombudsman could not see that the Crown could be said to be holding information ‘solely as an agent’ in this case, as it was clear that officers of the Department, acting in an official capacity, processed information relating to the Trust and made recommendations in respect of it.
It became clear that the department was concerned that arguments for the application of the OIA in this instance might also be applied to the various private sector organisations that are funded out of Vote: Labour, for example, training providers under the Access Training Scheme Act, private sector employers under various employment subsidy schemes, and major institutions such as the Labour Court, the Arbitration Commission and the Mediation Service.
The Chief Ombudsman pointed out that the question under section 2(2) is not limited to examining the functions of the organisation in question, but also relates to the question of who established the organisation. This enables a clear line to be drawn between this Trust, for example, and the unions who receive assistance from it. The Chief Ombudsman noted that it had been found on previous occasions that community based organisations (such as Housing Advice Centres) are caught by section 2(2) on the basis that they were established by a department and are publicly funded. Such organisations are very different, however, from private bodies or groups which are established by agreement between private individuals.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.