Releasing statement of claim in breach of confidentiality agreement would disadvantage the DHB by diminishing trust and goodwill between the parties—releasing report would disadvantage the DHB by assisting the other party to counter DHB’s position—public interest in disclosure outweighed the need to withhold the statement of claim but not the report
A requester complained to the Ombudsman about the Southern District Health Board’s (the DHB’s) refusal to disclose information about a long-running dispute with South Link Health (SLH), in reliance on section 9(2)(j).
The information at issue included the DHB’s statement of claim, and a report analysing SLH’s claim. The Ombudsman found that section 9(2)(j) of the OIA applied to this information.
The DHB’s statement of claim had been withheld following SLH’s objection to the disclosure of information subject to a confidentiality agreement. The Ombudsman accepted that goodwill between the parties may be undermined if information subject to the confidentiality agreement was disclosed. This would disadvantage the DHB’s negotiating position by diminishing the trust and willingness of SLH to engage in the negotiation.
The other report outlined and responded to the various claims made by SLH, and discussed possible options for the DHB. The Ombudsman considered that disclosure of this information would undermine the position of the DHB by disclosing its considerations and approach, without reciprocal obligations of disclosure on SLH. The DHB would then be disadvantaged in negotiations, and SLH would be better placed to counter the DHB’s position.
The Ombudsman noted competing factors favouring withholding and disclosure. The public interest in ensuring the DHB could achieve a favourable outcome at mediation was strong. However, there was also a public interest in disclosure of information to promote accountability for the handling of this long-running dispute involving significant sums of public money. The Ombudsman concluded that the public interest would be addressed by release of the DHB’s statement of claim. The public interest in release did not outweigh the need to withhold the report analysing SHL’s claim.
The DHB agreed to release the statement of claim and the complaint was resolved.
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.
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