MP sought information relating to a letter held by NZDF—prior to responding to the request, Queen’s Counsel investigation into propriety of the letter began— Minister of Defence then refused request—enquiries revealed that NZDF had not identified what information fell within scope of request at time of refusal as inquiry already underway—OIA contemplates that a decision to refuse a request for information will be made with reference to the information itself—once inquiry concluded NZDF able to determine letter was only information at issue— NZDF submitted that letter was not official information because it formed part of inquiry— letter generated and held by NZDF prior to inquiry and for purposes unrelated to the inquiry—letter therefore ‘official information’—Minister agreed to review original decision and later released letter to complainant
In August 2001 a Member of Parliament wrote to the New Zealand Defence Force (NZDF) requesting information relating to a letter entitled ‘Influence in the Centre – Opening the Second Front’ (the letter) which commented on the Government’s defence policy and funding.
In September 2001, a Queen’s Counsel (QC) was appointed by the Judge Advocate General, on behalf of the Chief of the Defence Force (CDF), to investigate the propriety of the letter.
In October 2001, the Minister of Defence advised the requester that given ‘an inquiry into “the letter”…[was] currently underway…it would be inappropriate for any party other than the Review to have access to the material you seek until the inquiry is completed and a report released’. The Minister therefore advised that he was refusing the request under section 9(2)(g)(i) of the OIA.
Prior to providing a substantive response to the Chief Ombudsman’s request, NZDF publicly released the QC’s report which confirmed that the letter was ‘not dealt with in any official way until August 2001, more than four years after it had been written’. Given this statement, it seemed to the Chief Ombudsman that it was unlikely there would be any official documentation produced in relation to the letter until August 2001. The request would therefore only encompass any ‘unofficial comment’ that was held by NZDF and any documentation that may have been produced between August 2001 and the refusal of the request in October 2001. The Chief Ombudsman wrote to the Minister asking him to identify the information which was encompassed by the request and either:
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release that information to the complainant; or
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provide the Chief Ombudsman with the relevant information together with the report he had previously requested setting out the reasons why it was considered necessary to withhold that information.
In response, NZDF confirmed that it wished to continue to withhold the information and a meeting was arranged with NZDF to discuss the circumstances of the original refusal.
At the meeting, NZDF advised that it had not yet identified whether it held information falling within the scope of the request. NZDF had only just been made aware of the existence of the letter at the time the request was received. As a result, NZDF considered it unlikely that there was any information covered by the original request. However, when it drafted its response refusing the request, NZDF did not know, for certain, whether there was in fact any information covered by the request.
The Chief Ombudsman commented that the OIA contemplates that a decision to refuse a request for information would necessarily be made with reference to the information itself. He would ordinarily expect that, when responding to a request for official information, an organisation would first identify the information falling within the scope of the request. The Chief Ombudsman asked NZDF to do this now.
NZDF agreed to identify the information at issue and review its original response given the passage of time. As a result, it confirmed that with the exception of the letter itself, it did not hold any information covered by the terms of the original request. In respect of the letter, the NZDF submitted that it could not be considered ‘official information’ as it formed part of the QC’s report.
The Chief Ombudsman was unable to identify any basis in law for this conclusion. Any information held by NZDF is official information for the purposes of the OIA. The letter had been created some time before the inquiry conducted by the QC took place and a request was made for it in August 2001. It did not form part of the QC’s inquiry until some weeks later. Official information that is held by a department or agency subject to the OIA for purposes unrelated to any proceedings before a commission, court or board of inquiry, does not suddenly cease to become official information because it has subsequently been given to that commission, court or board of inquiry. It was therefore the Chief Ombudsman’s view that the letter was official information for the purposes of the OIA. After advising NZDF of this, the Chief Ombudsman requested a report from NZDF setting out the substantive reasons why it was considered necessary to withhold the information under the OIA.
In response, the Minister advised the Chief Ombudsman that he was willing to review his original decision and he subsequently arranged to release the letter. The Chief Ombudsman decided to discontinue his enquiries on the basis that the complaint had now been resolved.
Comment
This case illustrates that, when responding to OIA requests, agencies should first identify the information covered by the request. The Act contemplates that a decision to refuse a request for information will be made with reference to the information itself. In the particular circumstances of this case, the requester should have been advised at the outset that it was unclear whether any information encompassed by the terms of the request existed.
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.