Request for information about vaccination certificates for domestic use

Background 

On 9 October 2021, the New Zealand Council of Civil Liberties (NZCCL) sent a joint letter to the Minister for COVID-19 Response and the Prime Minister expressing concern about the civil liberties implications of the planned introduction of vaccination certificates. In particular, that the government had not consulted widely enough before Cabinet had made its decision.

Investigation

The Ombudsman’s investigation established that on 3 November 2021, the Minister’s Office confirmed with the Department of Prime Minister and Cabinet that it would like all COVID-19 vaccine certificate advice created prior to 10 December 2021 to be prepared for proactive release by the end of January 2022. The requested information about advice on the proposals was part of the bundle of briefings that had been commissioned for that release and this accounts for the advice to the NZCCL on 22 November 2021.

In effect, the Minister’s response of 22 November 2021 constituted a refusal under section 18(d) of the OIA. This provision gives agencies a discretion to refuse a request for information that is or will soon be publicly available. However, like any discretion, it must be exercised reasonably. This means that agencies should take into account all the relevant circumstances of the request.

The Minister commented:

The circumstances of the agencies involved in the All-of-Government COVID-19 Response from October to December last year is of particular relevance. During that time, the relevant agencies were working on transitioning from the Alert Level Framework to the COVID-19 Protection Framework, including reviewing New Zealand’s vaccination progress. Agencies and the…Minister’s Office were working under extreme pressure during this time and had to alternate between producing policies and making them publicly available proactively or via the OIA.

The particular circumstances of [NZCCL’s] request was taken into account on commissioning. … the…Office did not consider it was reasonable to give the NZCCL request additional priority over its existing work addressing the COVID-19 pandemic, given the pressures the Office and other agencies were facing…

The Ombudsman acknowledged the pressure under which the agencies were working at the time. However, in the circumstances of this case he determined that cumulative failings to meet the requirements of the OIA meant that the response of the Minister on 22 November 2021 was unreasonable.[1]

First, there was the failure to make and communicate a decision on the NZCCL request within the maximum statutory timeframe. In the Ombudsman’s opinion, the delay in making the decision exacerbated the unreasonableness of the subsequent decision to refuse the request.

Secondly, although there was a plan in place in early November 2021 to proactively release decision-making documents relating to COVID-19 vaccination certificates by late January 2022 (including the five key decision-making documents which contained some of the requested information) the fact remained:

• the NZCCL had made a genuine request on 9 October 2021 for its request to be treated urgently to enable ‘effective participation in the making and administration of laws and policies’ (section 4(a)(i) OIA refers). Deferring release would inhibit this legitimate objective;
• what was planned for proactive release was evidently not exactly the same as what NZCCL had requested;[2]
• there had been an insufficient assessment of whether the requested information that was proposed for proactive release would include redactions.[3]

Thirdly, and as a result of the omission noted in the latter bullet point, the decision letter failed to specify that requested information was refused under section 9(2)(h) of the OIA. This meant that the NZCCL’s ability to complain to the Ombudsman about the decision to withhold information under this section was effectively delayed.

Finally, the Minister’s letter on 22 November 2021 failed to refer to the particular subsection relied on under the OIA to confirm refusal of the request. The notification of the decision simply stated:

I have made the decision to proactively release all decision making documents relating to…on the Unite against COVID-19 website… I intend to publish this information by late January 2022.

As noted in Kelsey v Minister of Trade [2015] NZHC 2497:

[125] The noun “reason” in s 19(a)(i) of the Act refers to one of the statutory reasons for refusing a request to release official information set out in s 18(a)-(h) of the Act. The Act requires the decision-maker to specify one of those reasons at the time a request for official information is refused. All the decision-maker needs to do is specify which of the provisions in s 18(a)-(h) has been relied upon when the request for official information is refused.

The bottom line is that a decision to release information proactively does not absolve a decision-maker of their responsibilities to a requester under the OIA. The discretion to refuse a request under section 18(d) must be notified properly and exercised reasonably, and with regard to the particular circumstances of each case. In this instance, the decision on the request was made outside the statutory timeframe. It also did not specify the reason for refusal, consider the requested information that would not be included in the information to be published, or advise that the published information would contain redactions. All this occurred in the context of a genuine request for urgency.

Outcome

For these reasons, the Ombudsman formed the opinion that the response the Minister communicated to the NZCCL on 22 November 2021 was unreasonable.

The Ombudsman decided to issue this case note to make his expectations around the use of section 18(d) clear and so that his findings could inform decision-making on all official information requests.

Disclaimer

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.