Request for information about the operation of the Spring Creek Coal Mine
Information was ‘official information’—Section 6(c) OIA did not apply—information not directly relevant to inquiry—release not likely to prejudice the effective conduct of the Royal Commission of Inquiry
In the wake of the Pike River Coal Mine tragedy, a journalist sought information about the Spring Creek Coal Mine, including its gas monitoring systems, back-up electricity supplies, and evacuations related to methane levels. Solid Energy replied that this information was not ‘official information’, or alternatively, that section 6(c) of the OIA provided good reason to withhold it. The requester complained to the Ombudsman.
Solid Energy’s concerns
The Royal Commission on the Pike River Coal Mine Tragedy was underway at the time. While the primary focus would be on Pike River, the terms of reference included inquiring into and reporting on the Acts, regulations and practices governing underground coal mining operations, and making recommendations for the prevention of similar disasters, and future safe working of coal mines.
Solid Energy argued the information could be included in any evidence or submissions made to the Royal Commission, and therefore it was excluded from the definition of ‘official information’ in section 2 of the OIA.
Alternatively, it argued that releasing information directly related to the issue of safety practices in underground coal mines could detract from or interfere with the Royal Commission's inquiry. The inquiry process could, it said, be undermined by premature and uninformed public comment, which might affect the evidence given by other parties.
Was the information ‘official information’?
Paragraph (h)(i) of the definition of ‘official information’ in section 2(1) of the OIA excludes ‘evidence given or submissions made to a Royal Commission’. In this case, however, the information at issue did not comprise evidence given or submissions made to the Royal Commission. Whether or not the information at issue might eventually be included in evidence or submissions to the Royal Commission was moot. Mere possibility was not sufficient to trigger the exclusion in section 2(1). In the Chief Ombudsman’s view, the information at issue was ‘official information’.
Section 6(c) provides good reason to withhold official information where release would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial.
In the context of the Pike River tragedy, there were three ongoing investigations. One was the Police criminal investigation, the second was the health and safety investigation by the Department of Labour, and the third was the Royal Commission of Inquiry.
The Police and health and safety investigations fell squarely within the established scope of section 6(c), being directly connected with a process of enforcing the law by ensuring compliance or investigating non-compliance with legal rules or standards. However, the Chief Ombudsman also accepted that section 6(c) could apply where release of information would prejudice the conduct of the Royal Commission of Inquiry.
Nevertheless, judgement had to be exercised as to the relevance of the information at issue to the matters under inquiry.
The information at issue in this case was not directly relevant to the matters under inquiry. The terms of reference for the inquiry made clear that the Acts and regulations governing coal mining operations were under consideration, as were the operational practices at Pike River itself. They did not suggest an in-depth consideration of operational practices at other mines. Even if the information did come before the Royal Commission, there was no reason to believe that prior release under the OIA would have been likely to prejudice the effective conduct of the inquiry.
The Chief Ombudsman consulted the Royal Commission before her opinion was finalised, but it chose not to respond. After considering the Chief Ombudsman’s opinion, Solid Energy agreed to release the information at issue 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.