Request for information about investigation of ECan’s performance

Confidentiality
Legislation display text:
Official Information Act 1982, 9(2)(ba)(i)
Agency:
Minister for the Environment
Ombudsman:
David McGee
Case number(s):
285985
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Section 9(2)(ba)(i) OIA did not apply to interview notes in their ‘totality’—however, it applied to names and identifying details—express obligation of confidence—release would be likely to prejudice the future supply of similar information—it is in the public interest for the Minister to be able to obtain honest, free and frank reviews on the performance of local government—section 9(2)(ba)(i) did not apply to unsolicited written submission that had previously been circulated to regional mayors— Jeffries v Attorney-General [2010] NZCA 38 cited—information released with redactions to names and identifying details

Background

The Minister for the Environment initiated an investigation into ECan’s (Environment Canterbury’s) resource consent processing and performance more generally. The final investigation report was published. It included a list of stakeholders consulted by the review team.

A requester sought records of interviews with, and correspondence received from, those stakeholders. The Minister withheld the interview notes and one written submission under section 9(2)(ba)(i) of the Official Information Act (OIA). The requester complained to the Ombudsman.

Investigation

Section 9(2)(ba)(i) provides good reason for withholding (subject to a public test) when releasing information that is ‘subject to an obligation of confidence’ would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied.

Interview notes

The withheld information comprised handwritten notes by the review team. They were ‘an aide memoire to assist in the analysis of issues by the review team rather than a verbatim record of each interview’.

The Minister advised that interviewees were provided explicit assurances of confidentiality at the beginning of the interview, and in many cases this was reiterated at the end of the interview. According to the review team, this was fundamental to their approach, and they did not believe the same insights would have been provided had confidentiality not been promised.

The Minister explained the nature of his oversight role, and that future reviews of local authorities might need to be conducted. Breaching the confidence of the interviewees would, in his view, ‘almost certainly’ prejudice the future supply of similar information, ‘particularly information related to sensitive and specific performance issues of staff or an organisation’, which would make it more difficult to conduct such reviews.

The Ombudsman accepted that the interview notes were subject to an obligation of confidence. However, he was not convinced that the ‘totality’ of the notes needed to be withheld in order to maintain the future supply of similar information. The Minister could not claim a ‘class exemption’ for all interview notes obtained as part of a review. He asked the Minister to transcribe the interview notes, and carefully assess each piece of information in light of section 9(2)(ba)(i).

After considering the matter further, the Minister decided to release the interview notes with redactions to some names and identifying details. Some of the names did not need to be withheld because the content of the notes, and the position occupied by the interviewee, meant that release would not be likely to prejudice the future supply of similar information.

The Ombudsman informed the requester of his opinion that section 9(2)(ba)(i) provided good reason to withhold the remaining names and identifying details. This information was subject to an explicit obligation of confidence, and release would be likely to prejudice the supply of similar information to such reviews in the future. It is in the public interest for the Minister to be able to obtain honest, free and frank reviews on the performance of local government. The public interest in disclosure of the names and identifying details did not outweigh the harm that would be caused by their release.

Written submission

This comprised an unsolicited email to the Minister from a former ECan Councillor providing a copy of ‘a confidential paper’ she had written and previously circulated to regional mayors.

The Ombudsman cited the following passage from Jeffries v Attorney-General [2010] NZCA 38, where the Court of Appeal considered whether an unsolicited letter to the Minister of Finance was subject to section 9(2)(ba) of the OIA:

‘I appreciate that Mr Jeffries purported to make his letter to Dr Cullen (copied to the State Services Commissioner and the Solicitor-General) ‘private and confidential’ and also purported to bind ‘the recipients of this letter to not releasing the letter to ‘the Powells’ current solicitors, Kensington Swan’ without his consent. Dr Cullen, however, never indicated he was prepared to accept the letter on that basis. If Mr Jeffries had wanted to gain such protection, he should first have ascertained whether Dr Cullen was prepared to accept the information he wished to convey on such a confidential basis. For obvious reasons, citizens cannot write to Ministers of the Crown and hope to avoid the release of their letters to enquirers simply by marking the letters ‘private and confidential’.  The information contained in Mr Jeffries’s letter was not, therefore, ‘subject to an obligation of confidence’ on either Dr Cullen’s part or on the part of the other recipients.

In this case, the sender did not ascertain prior to sending her submission that the Minister was prepared to accept it on a confidential basis. Moreover, the sender had already distributed the paper to regional mayors. In these circumstances, the Ombudsman did not accept that the written submission was ‘subject to an obligation of confidence’.  The sender was given an opportunity to comment, and she accepted the Ombudsman’s position.

Outcome

The Ombudsman formed the opinion that there was good reason to withhold names and identifying details from the interview notes under section 9(2)(ba)(i) of the OIA, but there was no good reason to withhold the written submission. The Minister released the interview notes (with redactions) and written submission.

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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