Access to information on consular file—refusal based on ‘class’ approach—principle of availability in s 5—information provided in summary form—s 16(e)
This was a protracted investigation and review relating to a request by a free-lance reporter, who had asked the Ministry of External Relations and Trade (MERT) for all written information held or consular file in respect of an identified person. MERT declined the request on the basis that in terms of section 9(2)(a) of the OIA it was necessary to withhold the information to protect the privacy of the individual concerned.
Having viewed the relevant file, the Ombudsman accepted that some of the information appeared to be of a nature which section 9(2)(a) seeks to protect. However, she could not see how disclosure of other information on the file would prejudice that interest and further consideration therefore had to be given to whether any other provision(s) might apply to that information.
The Ombudsman invited MERT to consider the request further in the light of her initial assessment of the information on the file, and also referred it to the options set out in sections 16 and 17 of the OIA for providing information comprised in documents in other forms or by making deletions from documents. MERT advised the Ombudsman that its general policy on consular files of this nature was that information was not released to anyone other than next-of-kin or a lawyer representing that person. It advanced a number of other grounds for declining to release any of the information on the file and commented:
…the circumstances of [this] case make the question of release under the Official Information Act more difficult to address. However, one needs to look at the principle of the consular relationship outside the context of the individual if one is properly to address this question… we maintain our view that the entire consular file should be withheld from release ... .
There ensued a lengthy exchange of correspondence and discussion between the Ombudsman and MERT. The Ombudsman endeavoured to explain why she did not consider that in respect of some of the information any of the grounds advanced met the tests required by the Act and sought clarification from MERT of the precise nature of the prejudice which it considered would flow from disclosure of that information. However, MERT continued to maintain its position that consular files, as a ‘class’ of information, should not be made publicly available.
Eventually, it became clear that MERT’s concern focused on release of documents from consular files rather than information, although clearly the content of the information would have to be considered in terms of the OIA. The fact that this was the concern was reflected in the practice which MERT adopts when it receives requests for information on consular files. It is prepared to (and does) release a certain amount of information from the file which varies according to whether the requester is a parent, sibling, next-of-kin, or an unrelated third party. The concern itself flows from the effects which MERT considered would result from release of documents from a consular file. Those effects were identified as the likelihood of consular officials being more guarded in what they said, and third parties being less likely to contact consular offices if they knew information they provided might be made publicly available.
In this case the Ombudsman accepted that section 9(2)(g)(i) of the OIA provided good reason for MERT to decline to release some of the information in the form of copies of the documents it held. The Ombudsman also accepted that much of the information contained in the documents was protected under sections 6(a), 6(b), 9(2)(a) and 9(2)(ba)(i). However, she did not accept that those provisions prevented MERT from releasing any of the information in a form other than copies of the original documents. Section 16(2)(c) of the OIA provides that information shall be made available in the way preferred by the requester unless to do so would ‘prejudice the interests protected by section 6 ... or section 9 of [the] Act and (in the case of the interests protected by section 9 of [the] Act) there is no countervailing public interest’. Therefore, some information could be made available in the form of a summary. The Ombudsman considered that disclosure in this manner would strike an appropriate balance between MERT’s legitimate concerns about making copies of original documents available, and the purposes and principle of the OIA. In this regard, it was clear that while MERT had looked at the purposes of the OIA in section 4 and taken the view that disclosure of the information at issue would not promote accountability of officials, it had not considered the principle of availability enunciated in section 5, namely, that information ‘shall be made available unless there is good reason for withholding it’. In the end, MERT released a summary of certain information which satisfied the requester.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.