Request for information about proposed Clifford Bay ferry terminal
Interislander’s operating costs, growth predictions and business strategy protected by s 9(2)(b)(ii)
A requester sought information about a ferry terminal that was proposed to be built at Clifford Bay in Marlborough. The Ministry of Transport refused the request and the requester complained to the Ombudsman.
It was subsequently announced by the Minister that the proposed ferry terminal would not proceed. The Ombudsman asked the Ministry to review its decision. The Ministry confirmed the decision to withhold a significant amount of material under section 9(2)(b)(ii), among other grounds, because release would be likely unreasonably to prejudice the commercial position of the Interislander ferry (owned by KiwiRail Holdings Limited).
The Ombudsman concluded that section 9(2)(b)(ii) applied to some, but not all, of the information. The key difficulty was the age of the information (much of it dated from 2009-2011), and the fact that a decision had been taken not to proceed with the proposed terminal.
The Ombudsman accepted that information about the Interislander’s operating costs remained sensitive. Release of information such as port fees, fuel costs and labour costs could enable a competitor to better negotiate their own comparative costs, thereby enabling lower operating costs and lower customer charges. This would be likely to prejudice the Interislander’s commercial position.
He also found that there was good reason to withhold Kiwirail’s growth predictions and business strategy, where this was not publicly available or related to the proposed port. The Ombudsman accepted that section 9(2)(b)(ii) can apply to a business’s internal growth predictions. Such information is developed in-house, and is used to develop strategies to grow a business, or minimise losses. It is crucial information within any business, release of which would be likely unreasonably to damage its commercial position.
However, the Ombudsman did not accept that there was good reason to withhold:
Information within the growth predictions and business strategy that related to the proposed ferry terminal. The growth predictions were based on increased sailings and capacity that differed from that possible at the existing Port of Marlborough in Picton, and from a shorter travel distance and time between Wellington and destinations south of Clifford Bay. The business strategy flowed from these figures. The growth figures and related strategy could not be adapted to apply to the Port of Marlborough. Release of this information would not be likely to prejudice the Interislander or KiwiRail’s commercial position.
Information about construction and operating costs and potential yields from the proposed port. Because a decision had been made not to continue with the proposed port, release could not possibly prejudice the Interislander’s or KiwiRail’s commercial position. When the information was created, it related to a hypothetical port. At the time of the Ministry’s reconsideration of the request, the decision had been taken not to proceed with a port at Clifford Bay. The figures at issue had no bearing on Kiwirail’s current commercial position, as they were not costs and yields that would ever occur.
Information about passenger volumes, car volumes and information about the freight market. This information dated from 2009-2011. The same or similar information was already publicly available in Kiwirail’s annual report and a study published by the Ministry. Release of this information would not be likely to prejudice KiwiRail’s commercial position.
A 2009 estimate of the value of KiwiRail’s land at Picton. The Ombudsman could not see how release of a high-level valuation from 2009 could impact the sale or other leveraging of the land. Any contract for sale and purchase, or other leveraging of the land, would be based on much more recent valuations, and the estimated value of the land in 2009 was unlikely to be relevant. Release of the valuation dating from 2009 would not be likely to prejudice KiwiRail’s commercial position.
The Ombudsman recommended that the information for which there was no good reason for withholding should be released.
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.