Request for information about dispute between South Link Health and Southern District Health Board

Good reason to withhold information that would reveal negotiating position and strategy or further deteriorate the relationship between the parties—s 9(2)(j) does not apply to some factual information and information that was known to the other party to the negotiation

A requester complained to the Ombudsman about the Ministry of Health’s refusal to disclose information concerning a long-running dispute between South Link Health (SLH) and the Southern District Health Board (the DHB), in reliance on section 9(2)(j). The Ministry’s Audit and Compliance Team was acting on behalf of the DHB in relation to the recovery of Crown-sourced funds.

The information at issue comprised reports and file notes on the dispute by the Audit and Compliance Team. The Ombudsman formed the opinion that there was good reason to withhold all of this information, barring three file notes.

The dispute was likely to go to mediation at the time, and so negotiations were reasonably in contemplation. The information referenced the position of the respective parties, provided some analysis of the dispute, and discussed future strategy. It therefore disclosed the bargaining position of the Ministry and the DHB, and would be beneficial to SLH in terms of countering this. The length and intractable nature of the dispute suggested to the Ombudsman that SLH would likely make use of such information to the disadvantage of the Ministry. The information also contained description and analysis of events in terms that, if disclosed, might further deteriorate the relationship between the parties, causing disadvantage to the Ministry in the negotiations.

However, the position was different with regard to three of the file notes at issue. One of the file notes recorded a meeting between the parties. It therefore contained information SLH was already well aware of. There could be no suggestion that release of this information could prejudice or disadvantage the Ministry’s negotiating position. The other file notes recorded factual information about the chronology of the dispute. The Ombudsman was not satisfied that release of this information would prejudice or disadvantage the Ministry in carrying on negotiations.

The Ombudsman noted competing factors favouring withholding and disclosure. The public interest in ensuring the Ministry and 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 noted that release of the three file notes would help to address the public interest. The public interest in disclosure of the remaining substantive information was not sufficient to outweigh the interests in allowing the Ministry to effectively pursue further negotiation.

The Ministry agreed to release the three file notes 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.